By Purchaser. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated): (i) payment of the Purchase Price in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller; (ii) Purchaser shall deposit $3,000,000 of the Purchase Price (the “Inventory Escrow Amount”) in an escrow account to be held, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller and the Escrow Agent, in such form as the Parties shall mutually agree (the “Escrow Agreement”); (iii) the Escrow Agreement, duly executed by Purchaser; (iv) the Transition Services Agreement, duly executed by Purchaser; (v) a certificate of the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser; (vi) a certificate, dated as of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and (vii) a certificate, dated as of the Closing Date, signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfied.
Appears in 1 contract
By Purchaser. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller Sellers each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller Sellers each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):) and pursuant to a funds flow memo the specifics of which the Seller Representative furnishes to Purchaser prior to the Closing:
(i) payment of the Purchase Price (which solely for purposes of this Section 2.4(b)(i) shall be determined using the Estimated Net Working Capital and the estimated Adjustment Amount resulting therefrom) in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to accounts specified to Purchaser by Seller;the Seller Representative and otherwise in the following manner:
(iiA) Purchaser shall pay the Debt Payoff Amount to the Company's lenders pursuant to the delivery instructions given in the Payoff Letters.
(B) Of the balance of the Purchase Price after the payment described in Section 2.4(b)(i)(A), Purchaser shall deposit $3,000,000 10,000,000 of the Purchase Price (the “Inventory Escrow Amount”"ESCROW FUNDS") in an escrow account the Escrow Account to be held, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement.
(C) Of the balance of the Purchase Price after the payments described in Sections 2.4(b)(i)(A) and (B), among Purchaser shall pay the Wind-Down Costs to the Seller Representative.
(D) Of the balance of the Purchase Price after the payments described in Section 2.4(b)(i)(A), (B) and (C), an amount equal to $150,000 to the Seller Representative (the "REIMBURSEMENT FUND") to provide funds to reimburse the Seller Representative for expenses incurred by it on behalf of the Sellers as further contemplated in Section 12.8.
(E) Of the balance of the Purchase Price after making the payments described in Sections 2.4(b)(i)(A), (B), (C) and (D), Purchaser shall pay to each Series A Preferred Shareholder, an amount equal to the Liquidation Value of each Series A Preferred Share (as such term is defined in and computed in the manner required by the Series A Certificate of Designations, which computation shall be certified to Purchaser by the Company at the Closing) multiplied by the number of Series A Preferred Shares owned by such holder, which number is specified for such holder opposite its name on Schedule 1.
(F) Of the balance of the Purchase Price after making the payments described in Sections 2.4(b)(i)(A), (B), (C), (D) and (E), an amount equal to the estimated Adjustment Amount, if positive, to the Seller Representative to be distributed to the Securityholders in accordance with Section 2.6(e).
(G) Of the balance of the Purchase Price after making the payments described in Sections 2.4(b)(i)(A), (B), (C), (D), (E) and (F), Purchaser shall pay to each Optionholder the amount owing to such Optionholder pursuant to the terms of the Option Termination Agreement executed and delivered by such Optionholder. At the Closing, the Company shall provide Purchaser with the amount payable to each Optionholder pursuant to this Section 2.4(b)(i)(G). The Company agrees that each Option Termination Agreement will provide for a payment, with respect to the termination of each Option, equal to (1) the Common Share Equivalent Consideration, less the exercise price set forth in such Option, multiplied by (2) the number of Common Shares issuable upon exercise of such Option in full, whether or not such Option has fully vested.
(H) Of the balance of the Purchase Price after making the payments described in Sections 2.4(b)(i)(A), (B), (C), (D), (E), (F) and (G), Purchaser shall pay to each Warrantholder the amount owing to such Warrantholder pursuant to the terms of the Warrant Termination Agreement executed and delivered by such Warrantholder. At the Closing, the Company shall provide Purchaser with the amount payable to each Warrantholder pursuant to this Section 2.4(b)(i)(H). The Company agrees that each Warrant Termination Agreement will provide, with respect to the termination of each Warrant, for a payment equal to (1) the Common Share Equivalent Consideration, less the exercise price set forth in such Warrant, multiplied by (2) the number of Common Shares issuable upon exercise of such Warrant in full.
(I) Purchaser shall pay the balance of the Purchase Price, after making the payments described in Sections 2.4(b)(i)(A), (B), (C), (D), (E), (F), (G) and (H), to holders of the Series B Preferred Shares, the Series C Preferred Shares and the Common Shares listed on Schedule 1, in proportion to the number of Series B Preferred Shares, Series C Preferred Shares and Common Shares held thereby, treating all such classes of stock as a single, combined class for these purposes. The Company agrees that each such holder will receive the Common Share Equivalent Consideration with respect to each such Series B Preferred Share, Series C Preferred Share and Common Share; provided that the amount payable to each obligor under a Management Promissory Note shall be reduced by an amount necessary to satisfy in full the obligations outstanding under such Management Promissory Note.
(ii) for Purchaser, Seller and the Escrow Agent, in such form as the Parties shall mutually agree (the “Escrow Agreement”);
(iii) the Escrow Agreement, duly executed by Purchaser;
(iv) the Transition Services Agreement, duly executed by Purchaser;
(v) a certificate of the Secretary of State of the state of organization of Purchasersuch entity, dated not more than 10 15 days prior to the Closing Date, as to the existence and and, where applicable, good standing of Purchasersuch entity;
(viiii) a certificate, dated as of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, Purchaser and (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; andhereto;
(viiiv) a certificate, dated as of the Closing Date, signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a8.2(a) and 7.2(b8.2(b) have been satisfied.;
(v) Purchaser shall deliver the Escrow Agreement duly executed by Purchaser; and
(vi) an opinion of Purchaser's counsel, dated as of the Closing Date and addressed to Sellers, substantially in the form of Exhibit F.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Macquarie Infrastructure CO LLC)
By Purchaser. Subject Purchaser hereby represents and warrants to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):
AER: (i) payment this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the Purchase Price courts in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller;
granting equitable remedies; (ii) Purchaser shall deposit $3,000,000 will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Purchase Price Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the “Inventory Escrow Amount”) in an escrow account to "State Acts"). There will be heldplaced on the Warrant and any certificates for the Shares, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller Conversion Shares and the Escrow AgentWarrant Shares, a legend stating in such form as the Parties shall mutually agree substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “Escrow Agreement”);
THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Escrow Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, duly executed by Purchaser;
Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and AER's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and acknowledges that an investment in the Transition Services AgreementSecurities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, duly executed by which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser;
's current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks. (v) a certificate Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;
Securities. (vi) a certificateThis Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), dated as which reliance by its execution of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and
hereby confirms. (vii) a certificate, dated as of Purchaser understands that the Closing Date, signed by a Responsible Officer Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser certifying that the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfiedcontained herein.
Appears in 1 contract
By Purchaser. Subject Purchaser hereby represents and warrants to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):AER:
(i) payment this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the Purchase Price courts in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Sellergranting equitable remedies;
(ii) Purchaser shall deposit $3,000,000 will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Purchase Price Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the “Inventory Escrow Amount”) in an escrow account to "State Acts"). There will be heldplaced on the Warrant and any certificates for the Shares, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller Conversion Shares and the Escrow AgentWarrant Shares, a legend stating in such form as the Parties shall mutually agree substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “Escrow Agreement”);
(iiiTHE "SECURITIES ACT") the Escrow Agreement, duly executed by Purchaser;
(iv) the Transition Services Agreement, duly executed by Purchaser;
(v) a certificate of the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;
(vi) a certificate, dated as of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and
(vii) a certificate, dated as of the Closing Date, signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfied.OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE
Appears in 1 contract
By Purchaser. Subject Purchaser hereby represents and warrants to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):AER:
(i) payment this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the Purchase Price courts in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Sellergranting equitable remedies;
(ii) Purchaser shall deposit $3,000,000 will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Purchase Price Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the “Inventory Escrow Amount”) in an escrow account to "State Acts"). There will be heldplaced on the Warrant and any certificates for the Shares, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller Conversion Shares and the Escrow AgentWarrant Shares, a legend stating in such form as the Parties shall mutually agree substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “Escrow Agreement”);THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION.
(iii) Purchaser, in offering to subscribe for the Escrow Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, duly executed by Purchaser;Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and AER's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act.
(iv) Purchaser understands and acknowledges that an investment in the Transition Services AgreementSecurities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, duly executed by which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser;'s current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks.
(v) a certificate Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;Securities.
(vi) a certificateThis Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), dated as which reliance by its execution of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; andhereby confirms.
(vii) a certificate, dated as Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser contained herein.
(viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Closing DateSecurities.
(ix) Purchaser has reviewed with its tax advisors the U.S. federal, signed state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be responsible for Purchaser's own tax liability that may arise as a Responsible Officer result of Purchaser certifying this investment or the transactions contemplated by this Agreement.
(x) Purchaser's acquisition of the Securities is not a transaction (or any element of a series of transactions) that is a part of a plan or scheme to evade the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfiedregistration provisions of the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aer Energy Resources Inc /Ga)
By Purchaser. Subject Purchaser hereby represents and warrants to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):AER:
(i) payment this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the Purchase Price courts in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Sellergranting equitable remedies;
(ii) Purchaser shall deposit $3,000,000 will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Purchase Price Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the “Inventory Escrow Amount”) in an escrow account to "State Acts"). There will be heldplaced on the Warrant and any certificates for the Shares, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller Conversion Shares and the Escrow AgentWarrant Shares, a legend stating in such form as the Parties shall mutually agree substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “Escrow Agreement”);THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION.
(iii) Purchaser, in offering to subscribe for the Escrow Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, duly executed by Purchaser;Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 1999 and AER's Quarterly Report on Form 10-Q for the quarter ended September 30, 2000. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act.
(iv) Purchaser understands and acknowledges that an investment in the Transition Services AgreementSecurities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, duly executed by which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser;'s current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks.
(v) a certificate Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;Securities.
(vi) a certificateThis Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), dated as which reliance by its execution of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; andhereby confirms.
(vii) a certificate, dated as Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser contained herein.
(viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Closing DateSecurities.
(ix) Purchaser has reviewed with its tax advisors the U.S. federal, signed state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be responsible for Purchaser's own tax liability that may arise as a Responsible Officer result of Purchaser certifying this investment or the transactions contemplated by this Agreement.
(x) Purchaser's acquisition of the Securities is not a transaction (or any element of a series of transactions) that is a part of a plan or scheme to evade the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfiedregistration provisions of the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aer Energy Resources Inc /Ga)
By Purchaser. Subject to the terms and conditions of this Agreement, at At the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):
following: (i) payment a certificate, dated the Closing Date, signed by an executive officer of Purchaser, certifying as to the Purchase Price matters set forth in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller;
Sections 7.03(a) and 7.03(b); (ii) Purchaser shall deposit pursuant to instructions set forth in the Funds Flow Memorandum, to each Seller, a payment in an amount equal to the proportion of such Seller’s Pro Rata Share of the Closing Payment; (iii) pursuant to instructions set forth in the Funds Flow Memorandum, a payment in an amount equal to $3,000,000 of the Purchase Price (the “Inventory Indemnity Escrow AmountDeposit”), to an account (the “Indemnity Escrow Account”) in specified by an escrow account to agent mutually agreed upon between the Bank and Purchaser (the “Escrow Agent”), which Indemnity Escrow Deposit shall be held, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement; notwithstanding anything to the contrary herein, among Purchaserthe Purchase Price allocable to the Shares held by the Minority Shareholders will not be subject to adjustment for the Indemnity Escrow Deposit, Seller and, accordingly, Sellers who are not Minority Shareholders shall bear more than their Pro Rata Share (under clause (i) of the definition of Pro Rata Share) of the adjustment to the Purchase Price for the Indemnity Escrow Deposit; (iv) pursuant to instructions set forth in the Funds Flow Memorandum, a payment in an amount equal to $2,000,000 (the “Adjustment Escrow Deposit,” and together with the Indemnity Escrow Deposit, the “Escrow Deposits”) to an account (the “Adjustment Escrow Account”) specified by the Escrow Agent, in such form as which Adjustment Escrow Deposit shall be held, safeguarded and released pursuant to the Parties shall mutually agree (the “Escrow Agreement”);
(iii) terms of the Escrow Agreement, duly executed by Purchaser;
(iv) the Transition Services Agreement, duly executed by Purchaser;
; (v) a certificate of the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior counterpart to the Closing Date, as to the existence and good standing of Purchaser;
Escrow Agreement; (vi) a certificatepursuant to instructions set forth in the Funds Flow Memorandum, dated as Purchaser shall pay any unpaid amounts of the Closing DateBank Transaction Expenses due and owing to any third-party advisors, signed such payment to be by the Secretary wire transfer of Purchaser certifying (A) that attached to such certificate are true immediately available funds; and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and
(vii) a certificate, dated as of the Closing Date, signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfiedCross-Receipt.
Appears in 1 contract
Samples: Stock Purchase Agreement (Newtek Business Services Corp.)
By Purchaser. Subject Purchaser shall defend, indemnify and hold Seller harmless from and against any claims, demands, actions, suits, proceedings, judgments, liabilities, settlement amounts, damages, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or in connection with the following:
(a) any claim that the lease amendments described in Section 2 above are a breach of Seller's fiduciary duty to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):
(i) payment of the Purchase Price in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller;
(ii) Purchaser shall deposit $3,000,000 of the Purchase Price (the “Inventory Escrow Amount”) in an escrow account to be held, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller and the Escrow Agent, in such form as the Parties shall mutually agree (the “Escrow Agreement”);
(iii) the Escrow Agreement, duly executed by Purchaser;
(iv) the Transition Services Agreement, duly executed by Purchaser;
(v) a certificate of the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;
(vi) a certificate, dated as of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of PurchaserPartnerships; and
(viib) the tax returns described in Section 12.5 above (or the failure to file returns) or the execution thereof by Seller and the RSH Controlled Entities; and
(c) any liability arising or accruing in connection with (i) Purchaser's ownership of a certificateUndisputed Interest if such liability arises or accrues after the date said Undisputed Interest is conveyed to Purchaser under this Agreement or (ii) Purchaser's management of Headquarters Newco, dated Wooded Lot Newco or Bridgeview Newco. Notwithstanding the foregoing, however, this Section does not apply to any otherwise indemnified matter that Seller may incur from a claim by Robexx X. Xxxx xxx/or Lindx X. Xxxx (xx their successors or assigns) arising from their capacities as partners in 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership and related to any tax liability triggered by any sale, contribution, joint venture or other act undertaken by said partnerships or by the Partnerships in which they are partners or with respect to the Properties they own, unless the following conditions are met: (i) the applicable Property has been transferred to a Newco and the Plan of Reorganization as approved by the Bankruptcy Court does not include item (c) from Section 6.5, or Purchaser has been substituted for Seller as the general partner in Seventy-Fifth Avenue Associates Limited Partnership and/or Trak Chicago Limited Partnership I, as applicable, by an assignment of the Closing DateInterim Partnership Interests under this Agreement; and (ii) Purchaser, signed by a Responsible Officer as manager of Purchaser certifying that the conditions Newco or as such general partner as set forth in the preceding clause breaches the partnership agreement of 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership; and (iii) that breach gives rise to the aforesaid tax liability. In addition, the foregoing indemnities under this subparagraph do not apply to any transaction, event or act contemplated by this Agreement, including (without limitation) those enumerated in Section 6.2(a16(e) and 7.2(b) have been satisfiedabove.
Appears in 1 contract
Samples: Purchase Agreement (Dart Group Corp)
By Purchaser. Subject Purchaser hereby represents and warrants to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):AER:
(i) payment this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the Purchase Price courts in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Sellergranting equitable remedies;
(ii) Purchaser shall deposit $3,000,000 will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Purchase Price Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the “Inventory Escrow Amount”) in an escrow account to "State Acts"). There will be heldplaced on the Warrant and any certificates for the Shares, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller Conversion Shares and the Escrow AgentWarrant Shares, a legend stating in such form as the Parties shall mutually agree substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “Escrow Agreement”);THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION.
(iii) Purchaser, in offering to subscribe for the Escrow Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, duly executed by Purchaser;Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act.
(iv) Purchaser understands and acknowledges that an investment in the Transition Services AgreementSecurities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, duly executed by which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser;'s current needs and contingencies, that Purchaser is able to afford to hold the Securities for an indefinite period and that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks.
(v) a certificate Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;Securities.
(vi) a certificateThis Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), dated as which reliance by its execution of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; andhereby confirms.
(vii) a certificate, dated as Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser contained herein.
(viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Closing DateSecurities.
(ix) Purchaser has reviewed with its tax advisors the U.S. federal, signed state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be responsible for Purchaser's own tax liability that may arise as a Responsible Officer result of Purchaser certifying this investment or the transactions contemplated by this Agreement.
(x) Purchaser's acquisition of the Securities is not a transaction (or any element of a series of transactions) that is a part of a plan or scheme to evade the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfiedregistration provisions of the Securities Act.
Appears in 1 contract
