Buyer's Obligation. The obligation of Buyer to purchase and pay for the Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions: (i) The respective representations and warranties of the Company and of Sellers made in this Agreement qualified as to materiality shall be true and correct, and those 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, except 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, on and as of such earlier date). The Company and each Seller 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 them at or prior to the Closing. 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 the 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 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. (ii) No statute, rule, regulation or executive order ("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 purchase and sale of the Shares shall be in effect. (iii) The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "XXX Xxx"), xx xpplicable to the purchase and sxxx xx xxx Xxxxxx, xhall have expired or been terminated. (iv) The Company shall have called for redemption all the issued and outstanding Preferred Shares, as provided in Section 6(c). (v) The Company shall have canceled, 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, 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 purchase and pay for the Transferred Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ia) The respective representations and warranties of the Company and of Sellers Seller made in this Agreement that are qualified as to materiality shall be true and correct, and those 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, except 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, on and as of such earlier date). The Company and each Seller 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 them at or prior to the Selling Companies by the time of the Closing. The Company Seller shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of the 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 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 covenantsforegoing.
(iib) No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 EntityGOVERNMENTAL ENTITY"), ) or other legal restraint or prohibition preventing the purchase and sale of the Shares or the Puerto Rico Shares shall be in effect.
(iiic) The waiting period under the HartXxxx-Scott-Rodino Xxxxx- Xxxxxx Antitrust Improvements Act of 1976 0000 (the xxx "XXX XxxXXX"), xx xpplicable to the purchase and sxxx xx xxx Xxxxxx, xhall ) shall have expired or been terminated.
(ivd) The Company Transaction Documents (other than this Agreement) shall have called for redemption all been executed and delivered by each of Seller and its Affiliates (including the issued Transferred Subsidiaries) to the extent that it is a party thereto and outstanding Preferred Shares, as provided shall be in Section 6(c)full force and effect.
(v) The Company shall have canceled, 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, 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.
(viiie) Buyer shall have received the opinion of Cravath, Swaine and Moore, counsel to financing contemplated by the Company, dated the Closing Daxx xxd Commitment Letter 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 accordance 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 24described therein.
(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 purchase and pay for the Shares and the Other Assets is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ia) The respective representations and warranties of the Company and of Sellers Seller made in this Agreement 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, as of the date hereof and as of the time of the Closing as though made as of such time, except 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, on and as of such earlier date). The Company and each Seller 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 them at or prior to Seller by the time of the Closing. The Company Seller shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of the Company Seller confirming the foregoing to the extent applicable to the Company's representations, warranties and covenants. Each Principal Seller foregoing.
(b) Buyer shall have delivered to Buyer a certificate received an opinion dated the Closing Date signed by or on behalf of such Principal Seller confirming Cravath, Swaine & Xxxxx, counsel to Seller, substantially in the foregoing to form of Exhibit B, and an opinion dated the extent applicable to such Principal Closing Date of Xxxx X. XxXxxxxxxx, General Counsel of Seller's representations, warranties and covenants.substantially in the form of Exhibit C.
(iic) No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 shall be in effect 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).
(d) The waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx"), if applicable to the purchase and sale of the Shares and the other Assets, shall be in effect.
(iii) The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "XXX Xxx"), xx xpplicable to the purchase and sxxx xx xxx Xxxxxx, xhall have expired or been terminated.
(ive) The Company Transition Distribution Services Agreement, the Distribution Agreement, the Cross-Licensing Agreement and the Manufacturing Agreement shall have called for redemption all been executed and delivered by the issued and outstanding Preferred Shares, as provided in Section 6(c)parties thereto.
(vf) The Company Buyer and Seller shall have canceled, effective as executed a xxxx of a time immediately prior sale for each relevant country with respect to the Closing and subject Other Assets in forms 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, as provided in Section 6(d)be mutually agreed upon.
(vig) Each 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 Sellers date hereof (other than any Seller that the "Commitment Letter), among Buyer, Chase, CSI and SB, 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 not being provided to Buyer and solely as a result of there having occurred a material adverse change in compliance with banking conditions that materially impairs the Code and Treasury regulations thereunder, certifying syndication of such facts financing 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.
by clause (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)(1c) 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 last paragraph on page three 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 24Commitment Letter.
(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 purchase and pay for the Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(i) The respective representations and warranties of the Company and of Sellers Seller made in this Agreement qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, with respect to representations and warranties not qualified by materiality, or in all respects, 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 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 qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and deemed to have been made as of such earlier date). The , in each case except for breaches that, individually or in the aggregate, could not have a Company and each Material Adverse Effect.
(ii) Seller 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 them at or prior to Seller by the time of the Closing. The Company .
(iii) Seller shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of the 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 Closing Date signed by or on behalf of such Principal Seller confirming the foregoing to satisfaction of the extent applicable to such Principal Seller's representations, warranties conditions set forth in Sections 3(a)(i) and covenants(ii).
(iiiv) No statuteAs of the Closing, rulethere shall not be any injunction, regulation or executive order ("Law") or judgment, decree, temporary restraining order, preliminary decree or permanent injunction or other order ("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 purchase and sale consummation of the Shares shall be in effectAcquisition.
(iiiv) The waiting period under the HartXxxx-ScottXxxxx-Rodino Xxxxxx Antitrust Improvements Act of 1976 1976, as amended (the "XXX Xxx"“HSR Act”), xx xpplicable to the purchase and sxxx xx xxx Xxxxxx, xhall shall have expired or been terminated.
(iv) The Company . 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 called for redemption all the issued and outstanding Preferred Shares, as provided in Section 6(c).
(v) The Company been obtained or filed or shall have canceled, 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, as provided in Section 6(d)occurred.
(vi) Each Buyer shall have received (A) a copy of the Sellers (other than any Seller that is a "foreign person" within the meaning certificate of Section 1445 incorporation of the CodeCompany 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 delivered a received the certificate or certificates representing the Shares, duly endorsed to Buyer or accompanied by duly executed and acknowledged certificatewitnessed stock powers duly endorsed to Buyer in blank in proper form for transfer, with appropriate transfer stamps, if any, 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 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 acceptable reasonably satisfactory to Buyer and its lenders and suitable for filing, in compliance with the Code and Treasury regulations thereunder, certifying such facts as to establish that the sale respect of the Shares security interests and any 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 transaction contemplated hereby parties thereto shall have been terminated with respect to the Company, in form and substance reasonably satisfactory to Buyer and its lenders.
(ix) Buyer shall have received each are exempt from withholding under Section 1445 of the Code. 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 may withhold from shall have received each of the Purchase Price any amount that is required following documents, duly executed by the parties thereto: (A) the estoppel certificates (dated no more than ten (10) days prior to be withheld under 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.
(viixi) The Company Seller shall have executed and delivered to Buyer a certificate transition services agreement, substantially in the form attached hereto as Exhibit C (the “Transition Services Agreement”).
(xii) Since the date hereof, there shall not have been any event, occurrence or development that has resulted in, or could result in, a Company Material Adverse Effect.
(xiii) Seller shall have executed and delivered an assignment, in form and substance reasonably acceptable to Buyer Buyer, assigning to the 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 compliance with Treas. Regs. ss. 1.897-2(hform 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) certifying that no interest 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 "United States real property interest" within the meaning of Section 897(c)(1) of the Code.
(viii) Buyer shall have received the opinion of Cravathparty or by which it is bound, 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 Administrative Services Agreement 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 employeesSchedule 4(t), in each case which are outstanding such that the Company shall have no liability or other obligations thereunder 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 approvalrespect thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Walter Industries Inc /New/)
Buyer's Obligation. The obligation of Buyer to purchase and pay for the Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(i) The respective representations and warranties of the Company and of Sellers Seller made in this Agreement qualified as to materiality shall be true and correct, and those 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, except 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, on and as of such earlier date), in each case except for breaches as to matters that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect (as defined below). The Company and each Seller 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 them at or prior to Seller by the time of the Closing. The Company Seller shall have delivered to Buyer a certificate certificates dated the Closing Date and signed on behalf by the President and the Chief Financial Officer of GGI and the Company by an authorized officer President of the Company each of GHI and HIS confirming the foregoing to the extent applicable to the Company's representations, warranties and covenants. Each Principal Seller foregoing.
(ii) Buyer shall have delivered to Buyer a certificate received an opinion dated the Closing Date signed by or on behalf 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 Principal Seller confirming firm has reviewed the foregoing to the extent applicable to opinion of Xxx Xxxxxx and that such Principal Seller's representations, warranties and covenantsfirm believes Buyer is justified in relying thereon.
(iiiii) No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 purchase and sale of the Shares shall be in effect.
(iiiiv) 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 purchase and sale of the Shares or any of the other transactions contemplated by this Agreement or seeking to obtain from Buyer or any of its subsidiaries in connection with the purchase and sale of the Shares any damages that are material in relation to 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 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 subsidiaries from effectively controlling in any material respect the business or operations of any Company or any of their respective subsidiaries.
(v) The waiting period under the HartXxxx-Scott-Rodino Xxxxx Xxxxxx Antitrust Improvements Act of 1976 0000 (the xxx "XXX Xxx"), xx xpplicable if applicable to the purchase and sxxx xx xxx Xxxxxxsale of the Shares, xhall shall have expired or been terminated.
(ivvi) The Company Western shall have called for redemption all repaid the issued and outstanding Preferred Shares, Surplus Debenture (as provided in Section 6(cdefined herein).
(v) The Company shall have canceled, 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, 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 Except for any advances or operating expenses incurred in the ordinary course of business, all indebtedness between the Companies, on the one hand, and Seller and its affiliates, on the other hand, 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 Codebeen repaid.
(viii) Neither Western nor ProRisk shall have any subsidiaries other than Gulf Assurance, 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 opinion of Cravath, Swaine and Moore, counsel to the Company, dated the Closing Daxx xxd substantially in the form of Exhibit A hereto.following documents from Seller:
(ix) Each of the Other Sellers shall have entered into an agreement pursuant to which such Other Seller shall (A) make 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 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 employeesCompanies are so qualified, in each case which are outstanding or in effect immediately issued as of a date not more than fourteen days prior to the Closing and Date;
(B) approved a Secretary's certificate of each of GGI, GHI and HIS certifying as to the Supplemental Payments incumbency of their respective authorized officers, genuineness of their respective signatures and Buyer shall have received reasonably satisfactory evidence validity and effectiveness of such ratification attached copies of their certificates of incorporation, by-laws and approvalauthorizing corporate resolutions;
(C) the records 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 purchase and pay for the Shares and the Other Assets is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ia) The respective representations and warranties of the Company and of Sellers Seller made in this Agreement that are qualified as to materiality shall be true and correct, and those 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, except 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, on and as of such earlier date). The Company and each Seller 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 them at or prior to Seller by the time of the Closing. The Company Seller shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of the 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 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 covenantsforegoing.
(iib) No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 purchase and sale of the Shares shall be in effect.
(iiic) 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 HartXxxx-ScottXxxxx-Rodino Xxxxxx Antitrust Improvements Act of 1976 0000 (the xxx "XXX Xxx"), xx xpplicable ) applicable to the purchase and sxxx xx xxx Xxxxxx, xhall sale of the Shares shall have expired or been terminated.
(iv) The Company shall have called for redemption all the issued and outstanding Preferred Shares, as provided in Section 6(c).
(v) The Company shall have canceled, 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, as provided in Section 6(d).
(vie) Each of the Sellers (other than any Seller that is a "foreign person" within Clinical Trials Agreement, the meaning of Section 1445 of Data Access Agreement, the Code) Intellectual Property Agreements, the Non-Competition Agreement, the Transition Services Agreement, the License Agreement and the Stockholders Agreement shall have delivered a duly been executed and acknowledged certificate, delivered by Seller or the appropriate Seller Entity and shall be in form full force 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 Codeeffect.
(viif) The Company Buyer shall have obtained the Buyer Stockholders Approval.
(g) Buyer shall have arranged financing on terms substantially consistent with the terms contemplated by the Firm Commitments or otherwise reasonably acceptable to Buyer.
(h) Seller shall deliver, or cause to be delivered, to Buyer at the Closing the Certificate described in Section 9.09.
(i) Seller 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 CodeSeller Release.
(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
Samples: Stock and Asset Purchase Agreement (Smithkline Beecham PLC)
Buyer's Obligation. The obligation of Buyer to purchase and pay for the Shares is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(i) 5.1.1 The respective representations and warranties of the Company and of Sellers made in this Agreement qualified as to materiality shall be true and correct, and those 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, except 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, on and as of such earlier date). The Company and each Seller 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 them at or prior to Sellers by the time of the Closing. The Company Sellers shall have delivered to Buyer a certificate dated the Closing Date and signed on behalf of the Company by an authorized officer of the Company confirming the foregoing to the extent applicable to the Company's representations, warranties and covenants. Each Principal Seller foregoing.
5.1.2 Buyer shall have delivered received an opinion of Stroock & Stroock & Xxxxx LLP, counsel to Buyer a certificate Sellers, dated the Closing Date signed by or on behalf of such Principal Seller confirming the foregoing Date, in a form reasonably satisfactory to the extent applicable to such Principal Seller's representations, warranties and covenantsBuyer.
(ii) 5.1.3 No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 purchase 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 (iiia) The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "XXX Xxx"), xx xpplicable challenging or seeking to restrain or prohibit the purchase and sxxx xx xxx Xxxxxx, xhall have expired or been terminated.
(iv) The Company shall have called for redemption all the issued and outstanding Preferred Shares, as provided in Section 6(c).
(v) The Company shall have canceled, 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, 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 or any other transaction contemplated hereby each are exempt from withholding under Section 1445 of the Code. other transactions contemplated by this Agreement or seeking to obtain from Buyer may withhold from or any of its affiliates in connection with the Purchase Price any amount that is required to be withheld under Section 1445 purchase and sale of the Code.
Shares any material damages; (viib) The Company shall have delivered seeking 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 prohibit or limit the ownership or operation by Buyer, the Company is a "United States real property interest" within the meaning or any of Section 897(c)(1) their respective subsidiaries of any material portion of the Code.
(viii) Buyer shall have received business or assets of Buyer, the opinion Company or any of Cravaththeir respective affiliates, Swaine and Mooreor to compel Buyer, counsel the Company or any of their respective affiliates to the Company, dated the Closing Daxx xxd substantially in the form dispose of Exhibit A hereto.
(ix) Each or hold separate any material portion of the Other Sellers shall have entered into an agreement pursuant to which such Other Seller shall (A) make business or assets of Buyer, the representations set forth in Section 5 to Buyer and (B) agree to indemnify the Buyer with respect to Company or 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 employeestheir respective affiliates, in each case which are outstanding as a result of the purchase and sale of the Shares or in effect immediately prior to any of the Closing and (B) approved the Supplemental Payments and Buyer shall have received reasonably satisfactory evidence of such ratification and approval.other transactions contemplated by
Appears in 1 contract
Buyer's Obligation. The obligation of Buyer to purchase and pay for effect the Shares Merger is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions:
(ia) The respective representations and warranties of Seller and the Company and of Sellers made in this Agreement (i) that are not qualified as to by materiality shall be true and correct, and those not so qualified 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. The Seller and the Company and each Seller 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 them at or prior to Seller and the Company by the time of the Closing. The Each of Seller and 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 Company, as applicable, confirming the foregoing to and the extent applicable to the Company's representations, warranties and covenants. Each Principal Seller shall have delivered to Buyer a certificate dated the 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 covenantscondition in Section 3.01(h).
(iib) No statute, rule, regulation or regulation, executive order ("Law") or judgmentorder, 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 purchase and sale 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 Shares business or assets of the Buyer or any of its Affiliates, shall be in effect.
(iiic) The waiting period under the Hart-Scott-Rodino Hxxx Sxxxx Xxxxxx Antitrust Improvements Act of 1976 (the "XXX Xxx"“HSR Act”), xx xpplicable if applicable to the purchase Merger, the Share Issuance and sxxx xx xxx Xxxxxxthe Warrant Issuance, xhall shall have expired or been terminated.
(ivd) The Company Seller shall have called for redemption all executed and delivered, or, if applicable, shall have caused its Affiliates named as parties to any Other Transaction Document to execute and deliver, the issued Other Transaction Documents.
(e) Seller shall have executed and outstanding Preferred Shares, 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 provided in contemplated by Section 6(c9.01(c).
(vh) The Company 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 canceleddelivered resignations, 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, as provided in Section 6(d).
(vi) Each of each officer and director 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 CodeCompany.
(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
