Buyer's Obligation. The obligation of Buyer to effect the Merger is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions: (a) The representations and warranties of Seller and the Company made in this Agreement (i) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects. Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h). (b) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”) or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion of the business or assets of the Buyer or any of its Affiliates, shall be in effect. (c) The waiting period under the Hxxx Sxxxx Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), if applicable to the Merger, the Share Issuance and the Warrant Issuance, shall have expired or been terminated. (d) Seller shall have executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents. (e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller. (f) [Intentionally Omitted]. (g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as contemplated by Section 9.01(c). (h) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to result in, a Material Adverse Effect. (i) Seller shall have delivered resignations, effective as of the Closing, of each officer and director of the Company.
Appears in 1 contract
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Property and assume the Assumed Liabilities is subject to the satisfaction (or waiver by Buyer) as of the Closing Date of the following conditions:
(ai) (x) The representations and warranties of Seller and the Company made in this Agreement (i) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects or in all respects, as applicable, of the date hereof and on and as of such earlier date) the Closing Date, as though made on and as of the Closing Date, except to the extent of changes in facts resulting from actions taken by Seller expressly permitted hereunder and except for representations and warranties that speak as of a specific date or time (iii) in the last sentence of Section 4.01 shall which need only be true and correct in all respects. as of such date or time), and (y) Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller. Notwithstanding the foregoing, the conditions set forth in this paragraph 5(a)(i) shall be deemed satisfied in the event that the costs or losses to Buyer which would result or reasonably and in good faith would be expected to result (the “Costs or Losses”) from such failure or failures, in the aggregate, of Seller and the Company to satisfy such conditions (x) are of a nature that can be reasonably quantified by the time Parties on an objective basis and (y) do not to exceed $250,000 (“Immaterial Noncompliance”); provided, however, in such event, without limiting any of Buyer’s right or remedies set forth herein in respect of such Immaterial Noncompliance, at the Closing. Each of Seller and , Buyer shall receive a credit against the Company shall have delivered Purchase Price in an amount equal to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller Costs or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)Losses.
(bii) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or of any court or administrative agency of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”) or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion of the business or assets of the Buyer or any of its Affiliates, jurisdiction shall be in effecteffect as of the Closing which restrains or prohibits the consummation of the transactions contemplated by this Agreement or the exercise by Buyer of control over the Property.
(c) The waiting period under the Hxxx Sxxxx Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), if applicable to the Merger, the Share Issuance and the Warrant Issuance, shall have expired or been terminated.
(d) Seller shall have executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as contemplated by Section 9.01(c).
(h) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to result in, a Material Adverse Effect.
(iiii) Seller shall have delivered resignationsto Buyer, effective as or to the Title Company to be held in escrow, all of the Closing, of each officer items set forth in Section 4(c) or otherwise expressly required herein to be delivered to Buyer.
(iv) Title Company shall be irrevocably and director unconditionally (subject to payment of the Companypremium therefor) committed to issue at Closing a Title Policy, insuring Buyer’s title to the Property subject only to the Permitted Exceptions.
(v) Buyer shall have received an estoppel from the Hotel Manager under the Hotel Management Agreement, substantially in the form mutually agreed upon by Buyer and Seller prior to the expiration of the Inspection Period (the “Manager Estoppel”), with such immaterial changes thereto as may be reasonably acceptable to Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(a) 5.1.1 The representations and warranties of Seller and the Company Sellers made in this Agreement (i) that are qualified as to materiality shall be true and correct, and those not so qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects). Seller and the Company Sellers shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company Sellers by the time of the Closing. Each of Seller and the Company Sellers shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)foregoing.
(b) 5.1.2 Buyer shall have received an opinion of Stroock & Stroock & Xxxxx LLP, counsel to Sellers, dated the Closing Date, in a form reasonably satisfactory to Buyer.
5.1.3 No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “"Governmental Entity”") or other legal restraint or prohibition preventing the Mergerpurchase and sale of the Shares shall be in effect.
5.1.4 There shall not be pending or threatened by any Governmental Entity or by any other person any suit, action or proceeding (a) challenging or seeking to restrain or prohibit the Share Issuance purchase and sale of the Shares or any of the Warrant Issuance, other transactions contemplated by this Agreement or compelling the seeking to obtain from Buyer or any of its Affiliates affiliates in connection with the purchase and sale of the Shares any material damages; (b) seeking to dispose prohibit or limit the ownership or operation by Buyer, the Company or any of all or a their respective subsidiaries of any material portion of the business or assets of Buyer, the Buyer Company or any of its Affiliatestheir respective affiliates, shall be in effect.
(c) The waiting period under the Hxxx Sxxxx Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), if applicable or to the Mergercompel Buyer, the Share Issuance and Company or any of their respective affiliates to dispose of or hold separate any material portion of the Warrant Issuance, shall have expired business or been terminated.
(d) Seller shall have executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliverassets of Buyer, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation Company or any of their respective affiliates, in the Seller 401(k) Plan(s) each case as contemplated by Section 9.01(c).
(h) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to a result in, a Material Adverse Effect.
(i) Seller shall have delivered resignations, effective as of the Closing, of each officer purchase and director sale of the Company.Shares or any of the other transactions contemplated by
Appears in 1 contract
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares and the Other Assets is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(a) The representations and warranties of Seller and the Company made in this Agreement (i) that are qualified as to materiality shall be true and correct, and those not so qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects). Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)foregoing.
(b) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “"Governmental Entity”") or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion purchase and sale of the business or assets of the Buyer or any of its Affiliates, Shares shall be in effect.
(c) No Action shall have been commenced by any United States Federal Governmental Entity charged with bringing or enforcing the antitrust, competition or trade regulatory laws of the United States seeking to restrain or prohibit the purchase and sale of the Shares or to deprive Buyer in any material respect of the benefits contemplated by or to be realized from the purchase and sale of the Shares.
(d) The waiting period under the Hxxx Sxxxx Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 0000 (the “HSR Act”), if xxx "XXX Xxx") applicable to the Merger, sale of the Share Issuance and the Warrant Issuance, Shares shall have expired or been terminated.
(de) Seller Each of the Clinical Trials Agreement, the Data Access Agreement, the Intellectual Property Agreements, the Non-Competition Agreement, the Transition Services Agreement, the License Agreement and the Stockholders Agreement shall have executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be been executed and delivered by SellerSeller or the appropriate Seller Entity and shall be in full force and effect.
(f) [Intentionally Omitted]Buyer shall have obtained the Buyer Stockholders Approval.
(g) Seller Buyer shall have provided resolutions terminating arranged financing on terms substantially consistent with the Company’s participation in the Seller 401(k) Plan(s) as terms contemplated by Section 9.01(c)the Firm Commitments or otherwise reasonably acceptable to Buyer.
(h) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted inSeller shall deliver, or are reasonably likely cause to result inbe delivered, a Material Adverse Effectto Buyer at the Closing the Certificate described in Section 9.09.
(i) Seller shall have delivered resignations, effective as of to Buyer the Closing, of each officer and director of the CompanySeller Release.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Smithkline Beecham PLC)
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ai) The respective representations and warranties of Seller and the Company and of Sellers made in this Agreement (i) that are qualified as to materiality shall be true and correct, and those not so qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) ). The Company and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects. each Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of them at or prior to the Closing. Each of Seller and the The Company shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of Seller or the Company, as applicable, Company confirming the foregoing to the extent applicable to the Company's representations, warranties and covenants. Each Principal Seller shall have delivered to Buyer a certificate dated the condition in Section 3.01(h)Closing Date signed by or on behalf of such Principal Seller confirming the foregoing to the extent applicable to such Principal Seller's representations, warranties and covenants.
(bii) No statute, rule, regulation, regulation or executive orderorder ("Law") or judgment, decree, temporary restraining order, preliminary or permanent injunction or other order ("Order") enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “"Governmental Entity”) "), or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion purchase and sale of the business or assets of the Buyer or any of its Affiliates, Shares shall be in effect.
(ciii) The waiting period under the Hxxx Sxxxx Xxxxxx Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”"XXX Xxx"), if applicable xx xpplicable to the Mergerpurchase and sxxx xx xxx Xxxxxx, the Share Issuance and the Warrant Issuance, shall xhall have expired or been terminated.
(div) Seller The Company shall have executed called for redemption all the issued and deliveredoutstanding Preferred Shares, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as contemplated by Section 9.01(c6(c).
(hv) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to result in, a Material Adverse Effect.
(i) Seller The Company shall have delivered resignationscanceled, effective as of a time immediately prior to the Closing and subject to the making of the payments described in Section 6(d), all outstanding Options that have not been exercised as of a time immediately prior to the Closing, of each officer and director as provided in Section 6(d).
(vi) Each of the Sellers (other than any Seller that is a "foreign person" within the meaning of Section 1445 of the Code) shall have delivered a duly executed and acknowledged certificate, in form and substance acceptable to Buyer and in compliance with the Code and Treasury regulations thereunder, certifying such facts as to establish that the sale of the Shares and any other transaction contemplated hereby each are exempt from withholding under Section 1445 of the Code. Buyer may withhold from the Purchase Price any amount that is required to be withheld under Section 1445 of the Code.
(vii) The Company shall have delivered to Buyer a certificate in form and substance acceptable to Buyer and in compliance with Treas. Regs. ss. 1.897-2(h) certifying that no interest in the Company is a "United States real property interest" within the meaning of Section 897(c)(1) of the Code.
(viii) Buyer shall have received the opinion of Cravath, Swaine and Moore, counsel to the Company, dated the Closing Daxx xxd substantially in the form of Exhibit A hereto.
(ix) Each of the Other Sellers shall have entered into an agreement pursuant to which such Other Seller shall (A) make the representations set forth in Section 5 to Buyer and (B) agree to indemnify the Buyer with respect to any breach of the representation and warranty set forth in Section 5(c) by such Seller on the terms and conditions set forth in Section 24.
(x) The holders of more than 75% of the outstanding Common Stock and Preferred Shares shall have (A) ratified and approved all stock option grants made to employees of GCC and all employment, consulting and severance agreements between GCC and its employees, in each case which are outstanding or in effect immediately prior to the Closing and (B) approved the Supplemental Payments and Buyer shall have received reasonably satisfactory evidence of such ratification and approval.
Appears in 1 contract
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares and the Other Assets is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(a) The representations and warranties of Seller and the Company made in this Agreement (i) that are qualified as to materiality shall be true and correct, and those representations and warranties not so qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified as to materiality shall be true and correct, and those representations and warranties not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects). Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)foregoing.
(b) Buyer shall have received an opinion dated the Closing Date of Cravath, Swaine & Xxxxx, counsel to Seller, substantially in the form of Exhibit B, and an opinion dated the Closing Date of Xxxx X. XxXxxxxxxx, General Counsel of Seller, substantially in the form of Exhibit C.
(c) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “"Governmental Entity”") or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion of the business or assets of the Buyer or any of its Affiliates, shall be in effecteffect preventing the consummation of the transactions contemplated to occur at the Closing. The parties shall have received all authorizations, consents, orders and approvals of Governmental Entities required in order to consummate the sale of the Shares and the Other Assets and the execution and delivery of the Transaction Agreements, except the consents listed on Schedule 4.2(iii)(B).
(cd) The waiting period under the Hxxx Sxxxx Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 0000 (the “HSR Act”xxx "XXX Xxx"), if applicable to the Merger, purchase and sale of the Share Issuance Shares and the Warrant Issuanceother Assets, shall have expired or been terminated.
(de) Seller The Transition Distribution Services Agreement, the Distribution Agreement, the Cross-Licensing Agreement and the Manufacturing Agreement shall have executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be been executed and delivered by Sellerthe parties thereto.
(f) [Intentionally Omitted]Buyer and Seller shall have executed a xxxx of sale for each relevant country with respect to the Other Assets in forms to be mutually agreed upon.
(g) Seller Buyer shall not have been informed in writing by any of The Chase Manhattan Bank ("Chase"), Xxxxx Xxxxxx Funding Group ("SB") and Chase Securities Inc. ("CSI") that the financing contemplated by the Commitment Letter, dated as of the date hereof (the "Commitment Letter), among Buyer, Chase, CSI and SB, is not being provided resolutions terminating to Buyer solely as a result of there having occurred a material adverse change in banking conditions that materially impairs the Company’s participation in the Seller 401(k) Plan(s) syndication of such financing as contemplated by Section 9.01(c).
clause (hc) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to result in, a Material Adverse Effect.
(i) Seller shall have delivered resignations, effective as of the Closing, of each officer and director last paragraph on page three of the CompanyCommitment Letter.
Appears in 1 contract
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ai) The representations and warranties of Seller and the Company made in this Agreement (i) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof with respect to representations and as of the time of the Closing as though made as of such time, (ii) that are warranties not qualified by materiality materiality, or Material Adverse Effect shall be true and correct in all respects as so qualifiedrespects, with respect to representations and warranties qualified by materiality, as of the date hereof and as of the time of the Closing Date as though made as of such timedate, except in each case to the extent such representations and warranties expressly relate to an a specified date that is earlier than the date of this Agreement (in which case such representations and warranties shall be true and correct in all material respects or in all respects, as applicable, on and deemed to have been made as of such earlier date) and (iii) ), in each case except for breaches that, individually or in the last sentence of Section 4.01 shall be true and correct in all respects. aggregate, could not have a Company Material Adverse Effect.
(ii) Seller and the Company shall have performed or complied in all material respects with all covenants and obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of .
(iii) Seller and the Company shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing satisfaction of the conditions set forth in Sections 3(a)(i) and the condition in Section 3.01(h(ii).
(biv) No statuteAs of the Closing, rulethere shall not be any injunction, regulationjudgment, executive order, decree, temporary restraining order, preliminary decree or permanent injunction or other order enacted, entered, promulgated, enforced or ruling in effect issued by any Federalfederal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign instrumentality (a “Governmental Entity”) restraining or other legal restraint or prohibition preventing prohibiting the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion consummation of the business or assets of the Buyer or any of its Affiliates, shall be in effectAcquisition.
(cv) The waiting period under the Hxxx Sxxxx Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 1976, as amended (the “HSR Act”), if applicable to the Merger, the Share Issuance and the Warrant Issuance, shall have expired or been terminated. All other authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity that are necessary for the consummation of the Acquisition shall have been obtained or filed or shall have occurred.
(dvi) Seller Buyer shall have received (A) a copy of the certificate of incorporation of the Company certified by the Delaware Secretary of State, (B) a certificate of good standing of the Company certified by the Delaware Secretary of State, (C) a certificate of good existence of the Company certified by the South Carolina Secretary of State and (D) a certificate of the secretary of the Seller dated as of the Closing Date certifying (1) that the certificate of incorporation and bylaws of the Seller and the Company attached thereto are true, correct, and complete and in full force and effect, (2) as to the incumbency of officers executing this Agreement, and (3) that this Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate actions.
(vii) Buyer shall have received the certificate or certificates representing the Shares, duly endorsed to Buyer or accompanied by duly executed and deliveredwitnessed stock powers duly endorsed to Buyer in blank in proper form for transfer, orwith appropriate transfer stamps, if applicableany, affixed.
(viii) (A) The security interests granted to Bank of America, N.A. by the Company pursuant to the Security Agreement dated as of April 17, 2003, among the Seller, each of the subsidiaries of the Seller from time to time party thereto, and Bank of America, N.A. (the “Security Agreement”), shall have caused been released together with any other Liens on the Shares or any assets of the Company; (B) Buyer shall have received UCC termination statements, in form and substance reasonably satisfactory to Buyer and its Affiliates named lenders and suitable for filing, in respect of the security interests and Liens described in the immediately preceding clause (A); and (C) the Guaranty Agreement dated as of April 17, 2003 among the Company, Bank of America, N.A. and the other parties thereto shall have been terminated with respect to any Other Transaction Document the Company, in form and substance reasonably satisfactory to execute Buyer and deliver, the Other Transaction Documentsits lenders.
(eix) Buyer shall have received each of the consents set forth on Schedule 3(a)(ix), and each such consent (A) shall not be subject to the satisfaction of any condition that has not been satisfied or waived, (B) shall be in full force and effect, and (C) shall be in form and substance reasonably satisfactory to Buyer.
(x) Buyer shall have received each of the following documents, duly executed by the parties thereto: (A) the estoppel certificates (dated no more than ten (10) days prior to the Closing Date) referred to in Section 8(a); (B) the non-disturbance agreements referred to in Section 8(a); (C) the landlord lien waiver and consent referred to in Section 8(a); and (D) an affidavit of non-foreign status of the Seller which complies with section 1445 of the Code.
(xi) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation a transition services agreement, substantially in the Seller 401(k) Plan(s) form attached hereto as contemplated by Section 9.01(cExhibit C (the “Transition Services Agreement”).
(hxii) Since the date hereof, there will shall not have occurred been any events nor will there exist circumstances which singly event, occurrence or in the aggregate have development that has resulted in, or are reasonably likely to could result in, a Company Material Adverse Effect.
(ixiii) Seller shall have executed and delivered resignationsan assignment, effective as of in form and substance reasonably acceptable to Buyer, assigning to the Closing, of each officer and director Company all invention assignment agreements with individuals who contributed to the development of the Company’s intellectual property and all such intellectual property (collectively, the “IP Assignments”).
(xiv) Seller shall have executed and delivered a sublicense, in form and substance reasonably acceptable to Buyer, of the Seller’s rights under that certain Supplier Agreement dated as of July 31, 1999 between Seller and the Lemelson Medical, Education and Research Foundation (the “Sublicense”).
(xv) Seller shall have executed and delivered a trademark assignment, in form and substance reasonably satisfactory to Buyer, of the “JW Aluminum” xxxx (the “Trademark Assignment”).
(xvi) Seller shall have terminated, in form and substance reasonably satisfactory to Buyer, (A) all tax sharing agreements to which the Company is a party or by which it is bound, and (B) the Administrative Services Agreement set forth on Schedule 4(t), in each case such that the Company shall have no liability or other obligations thereunder or in respect thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Walter Industries Inc /New/)
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ai) The representations and warranties of Seller and the Company made in this Agreement (i) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) ), in each case except for breaches as to matters that, individually or in the last sentence of Section 4.01 shall be true and correct in all respectsaggregate, are not reasonably likely to have a Material Adverse Effect (as defined below). Seller and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate certificates dated the Closing Date and signed by an authorized officer the President and the Chief Financial Officer of Seller or GGI and the Company, as applicable, President of each of GHI and HIS confirming the foregoing and the condition in Section 3.01(h)foregoing.
(bii) Buyer shall have received an opinion dated the Closing Date of Xxxxxx & Xxxxxx L.L.P., counsel to Seller, substantially in the form of Exhibit A, and an opinion dated the Closing Date of Xxx Xxxxxx, General Counsel of Seller, substantially in the form of Exhibit B. The opinion of Xxxxxx & Xxxxxx L.L.P. shall state that such firm has reviewed the opinion of Xxx Xxxxxx and that such firm believes Buyer is justified in relying thereon.
(iii) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “"Governmental Entity”) "), or other legal restraint or prohibition preventing the Mergerpurchase and sale of the Shares shall be in effect.
(iv) There shall not be pending or threatened by any Governmental Entity any suit, action or proceeding (or by any other person any suit, action or proceeding which has a reasonable likelihood of success), (A) challenging or seeking to restrain or prohibit the Share Issuance purchase and sale of the Shares or any of the Warrant Issuance, other transactions contemplated by this Agreement or compelling the seeking to obtain from Buyer or any of its Affiliates subsidiaries in connection with the purchase and sale of the Shares any damages that are material in relation to dispose Buyer and its subsidiaries taken as a whole, (B) seeking to prohibit or limit the ownership or operation by Buyer, any Company or any of all or a their respective subsidiaries of any material portion of the business or assets of Buyer, any Company or any of their respective subsidiaries, or to compel Buyer, any Company or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of Buyer, any Company or any of their respective subsidiaries, in each case as a result of the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement, (C) seeking to impose limitations on the ability of Buyer to acquire or hold, or exercise full rights of ownership of, the Shares or (D) seeking to prohibit Buyer or any of its Affiliates, shall be subsidiaries from effectively controlling in effectany material respect the business or operations of any Company or any of their respective subsidiaries.
(cv) The waiting period under the Hxxx Sxxxx Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976 0000 (the “HSR Act”xxx "XXX Xxx"), if applicable to the Merger, purchase and sale of the Share Issuance and the Warrant IssuanceShares, shall have expired or been terminated.
(dvi) Seller Western shall have executed and delivered, or, if applicable, shall have caused its Affiliates named repaid the Surplus Debenture (as parties to any Other Transaction Document to execute and deliver, the Other Transaction Documents.
(e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as contemplated by Section 9.01(cdefined herein).
(hvii) Since the date hereof, there will not have occurred Except for any events nor will there exist circumstances which singly advances or operating expenses incurred in the aggregate ordinary course of business, all indebtedness between the Companies, on the one hand, and Seller and its affiliates, on the other hand, shall have resulted in, or are reasonably likely to result in, a Material Adverse Effectbeen repaid.
(iviii) Seller Neither Western nor ProRisk shall have delivered resignationsany subsidiaries other than Gulf Assurance, effective B.V.I., an insurance company located in the British Virgin Islands.
(ix) The Shares shall be free and clear of all liens, including the liens described in Schedule 5(c).
(x) Western shall have maintained a rating by A.M. Best & Co. of "A-" or better from the date of this Agreement through and including the Closing Date.
(xi) Western shall have been released from all letters of credit described in the stock purchase agreement between Western and CMA Holdings (listed under item (viii) of Schedule 5(l)).
(xii) Buyer shall have received the following documents from Seller:
(A) certificates of good standing (or comparable documents) for each of Western and ProRisk from their respective States of incorporation, and certificates of good standing (or comparable documents) as foreign corporations in each jurisdiction where the Companies are so qualified, in each case issued as of a date not more than fourteen days prior to the Closing, Closing Date;
(B) a Secretary's certificate of each officer of GGI, GHI and director HIS certifying as to the incumbency of their respective authorized officers, genuineness of their respective signatures and validity and effectiveness of attached copies of their certificates of incorporation, by-laws and authorizing corporate resolutions;
(C) the Companyrecords specified in Section 9(e); and
(D) termination of any tax sharing agreement between the Companies and GGI.
Appears in 1 contract
Samples: Stock Purchase Agreement (Frontier Insurance Group Inc)
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Units is subject to the satisfaction (or waiver by Buyer) as of on or prior to the Closing of the following conditions:
(a) The Each of the representations and warranties of Seller and the Company made in this Agreement (i) that are not is expressly qualified by a reference to materiality or Material Adverse Effect shall be true in all respects as so qualified, and each of the representations and warranties of Seller in this Agreement that is not so qualified shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (date, in which case such representations and warranties that are expressly qualified by a reference to materiality shall be true in all respects as so qualified, and each of the representations and warranties of Seller in this Agreement that is not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) ; provided, that any such representation and (iii) in warranty shall be deemed not to have been breached unless the last sentence failure of Section 4.01 shall such representation and warranty to be true and correct in all respectscorrect, without giving effect to qualifications with respect to materiality, would be reasonably likely to have a Material Adverse Effect. Seller and the Company shall have performed or complied complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate certificate, substantially in the form attached hereto as Exhibit 3.01(a), dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)foregoing.
(b) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, ,entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”) or other legal restraint or prohibition preventing the Merger, the Share Issuance or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion purchase and sale of the business or assets of the Buyer or any of its Affiliates, Units shall be in effect; provided, however, that, if Seller or Buyer is contesting or resisting any such legal restraint, each of the parties shall have used its reasonable best efforts (as required by Section 8.04) to prevent the occurrence or entry of any such legal restraint and to remove or appeal as promptly as possible any such legal restraint.
(c) The waiting period under the Hxxx Sxxxx Xxxxxx Hxxx-Xxxxx- Rxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), if applicable to the Merger, purchase and sale of the Share Issuance and the Warrant IssuanceUnits, shall have expired or been terminated. Any consents, authorizations, orders, approvals, declarations and filings under the HSR Act or any other applicable antitrust law, the absence of which would prohibit the consummation of the purchase of the Units, shall have been made or obtained.
(d) Seller shall have delivered to Buyer (i) the License Assignment, duly executed by Seller, (ii) the Seller License Agreements and deliveredthe Company License Agreement, oreach duly executed by Seller and the Company, if applicable(iii) the LLC Assignment, shall have caused its Affiliates named as parties to any Other Transaction Document to execute duly executed by ERSquibb, (iv) the Registration Rights Agreement, duly executed by Seller, and deliver(v) the Transitional Services Agreement, duly executed by Seller and the Other Transaction DocumentsCompany.
(e) Seller shall have executed and delivered the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as contemplated by Section 9.01(c).
(h) Since the date hereof, there will shall not have occurred any events nor will there exist circumstances which singly material change in the business, financial condition or results of operations of the Company that, individually or in the aggregate have resulted inaggregate, or are would be reasonably likely to result in, have a Material Adverse Effect.
(if) Seller Consents shall have delivered resignations, effective as been received from the third party to agreements numbered 1 and 2 of Section 4.02(a) of the Closing, of each officer and director of the CompanySeller Disclosure Schedule.
Appears in 1 contract
Samples: Purchase Agreement (Deltagen Inc)
Buyer's Obligation. The obligation of Buyer to effect purchase and pay for the Merger Transferred Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(a) The representations and warranties of Seller and the Company made in this Agreement (i) that are qualified as to materiality shall be true and correct, and those not so qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, as of the date hereof and as of the time of the Closing as though made as of such time, (ii) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified, as of the date hereof and as of the time of the Closing as though made as of such time, except in each case to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects or in all respects, as applicable, on and as of such earlier date) and (iii) in the last sentence of Section 4.01 shall be true and correct in all respects). Seller and the Company The Selling Companies shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller and the Company Selling Companies by the time of the Closing. Each of Seller and the Company shall have delivered to Buyer a certificate dated the Closing Date and signed by an authorized officer of Seller or the Company, as applicable, confirming the foregoing and the condition in Section 3.01(h)foregoing.
(b) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”"GOVERNMENTAL ENTITY") or other legal restraint or prohibition preventing the Merger, purchase and sale of the Share Issuance Shares or the Warrant Issuance, or compelling the Buyer or any of its Affiliates to dispose of all or a material portion of the business or assets of the Buyer or any of its Affiliates, Puerto Rico Shares shall be in effect.
(c) The waiting period under the Hxxx Sxxxx Xxxx-Xxxxx- Xxxxxx Antitrust Improvements Act of 1976 0000 (the “HSR Act”), if applicable to the Merger, the Share Issuance and the Warrant Issuance, xxx "XXX XXX") shall have expired or been terminated.
(d) Seller The Transaction Documents (other than this Agreement) shall have been executed and delivered, or, if applicable, shall have caused delivered by each of Seller and its Affiliates named as parties (including the Transferred Subsidiaries) to any Other Transaction Document to execute the extent that it is a party thereto and deliver, the Other Transaction Documentsshall be in full force and effect.
(e) Seller Buyer shall have executed and delivered received the Transfer Documents to be executed and delivered by Seller.
(f) [Intentionally Omitted].
(g) Seller shall have provided resolutions terminating the Company’s participation in the Seller 401(k) Plan(s) as financing contemplated by Section 9.01(c)the Commitment Letter substantially in accordance with the terms described therein.
(h) Since the date hereof, there will not have occurred any events nor will there exist circumstances which singly or in the aggregate have resulted in, or are reasonably likely to result in, a Material Adverse Effect.
(i) Seller shall have delivered resignations, effective as of the Closing, of each officer and director of the Company.
Appears in 1 contract
