Closing Deliverables of the Company. At the Closing, the Company shall deliver, or cause to be delivered, to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper form: (a) payoff letters with respect to all Indebtedness of the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), executed by the lenders thereof; (b) the Escrow Agreement, duly executed by the Member Representative and the Escrow Agent; (c) a copy of the authorizing resolutions of the Company’s board of managers, certified by the secretary of the Company as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby; (d) a copy of the Company Member Approval, certified by the secretary of the Company as having been duly and validly adopted and being in full force and effect; (e) the Non-Competition Agreements, duly executed by each individual listed on Schedule 6.1(e); (f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent; (g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents; (h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and (i) a good standing certificate for the Company certified by the California Secretary of State, dated as of a date within five (5) Business Days of the Closing Date.
Appears in 1 contract
Closing Deliverables of the Company. At In addition to any other documents specifically required to be delivered pursuant to this Agreement, on or prior to the ClosingClosing Date, the Company shall deliver, deliver or cause to be delivered, delivered to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper formBuyer:
(ai) payoff letters with respect to all Indebtedness of the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), executed by the lenders thereof;
(b) the Escrow Agreement, this Agreement duly executed by the Member Representative and the Escrow AgentCompany;
(cii) a copy the Registration Rights Agreement duly executed by the Company;
(iii) the Certificate of Designations, which shall have been filed with and accepted by the Secretary of State of the authorizing resolutions State of Delaware and shall have become effective as of the Closing Date;
(iv) the Company’s board of managerswire instructions, certified on Company letterhead and executed by the secretary Chief Executive Officer or Chief Financial Officer;
(v) evidence that the Company and the members of The Xxxxxxx Group, LLC (“THG”) have entered into that certain Fifth Amended and Restated Limited Liability Company Agreement of THG, dated as of the Company date hereof;
(vi) a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding on the Closing Date immediately prior to the Closing;
(vii) all consents, approvals and other actions of, and notices and filings with, all Governmental Entities and other third parties, as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery of this Agreement and the Ancillary Agreements may be necessary or required under law or any contract to which the Company is a party, party with respect to the execution and delivery by the parties of the Transaction Documents and the consummation by the parties of the transactions contemplated hereby and thereby;
(dviii) a copy certificate executed by the Secretary of the Company Member Approvaland dated as of the Closing Date, certified as to (i) the resolutions consistent with Section 3(b) as adopted by the secretary Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company as having been duly and validly adopted and being in full force and effecteffect at the Closing;
(e) the Non-Competition Agreements, duly executed by each individual listed on Schedule 6.1(e);
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(gix) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of certificate evidencing the value of the gross assets formation and good standing of the Company does not consist in the state of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified Delaware issued by the California Secretary of State, dated State as of a date within five ten (510) Business Days days of the Closing Date; and
(x) such other instruments or documents reasonably deemed necessary by Buyer to effect the Closing.
Appears in 1 contract
Closing Deliverables of the Company. At On or prior to the ClosingClosing Date (or as otherwise specified in each clause below), the Company shall deliver, deliver or cause to be delivered, delivered to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), Investor the following documents, in each case duly executed or otherwise in proper formfollowing:
(a) payoff letters with respect to all Indebtedness This Purchase Agreement, dated as of the date hereof, by and among the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), Investor duly executed by the lenders thereofCompany;
(b) the Escrow Agreement, duly executed Unless otherwise agreed to by the Member Representative Company and the Escrow AgentInvestor, “.pdf” copies of one or more stock certificates, free and clear of all restrictive or other legends (except as provided in Section 3 hereof) or statements from the Company’s transfer agent evidencing the Securities purchased by the Investor hereunder, registered in the name of the Investor as set forth in Appendix A hereto (the “Stock Certificates”) with the original Stock Certificates to be delivered by the Company’s transfer agent to the registered address of the Investor, as set forth in Appendix A hereto, promptly after the Closing Date but no later than five business days from the Closing Date;
(c) a copy That certain registration rights agreement, dated as of the authorizing Closing Date, by and among the Company and the Investor (the “Registration Rights Agreement”) duly executed by the Company;
(d) A certificate of the secretary of the Company, dated as of the Closing Date, (i) certifying resolutions of adopted by the Company’s board of managersdirectors, certified by the secretary of the Company as having been or a duly and validly adopted and being in full force and effectauthorized committee thereof, authorizing the execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, and the consummation of approving the transactions contemplated hereby in this Purchase Agreement, the Registration Rights Agreement and thereby;
any other documents or agreements executed in connection with the transactions contemplated hereunder (dtogether, the “Transaction Documents”) a copy and the issuance of the Company Member ApprovalSecurities, certified by (ii) certifying the secretary current versions of the Company Company’s certificate of incorporation and by-laws, each as having been duly amended, and validly adopted (iii) certifying as to the signatures and being in full force authority of persons signing the Transaction Documents and effectrelated documents on behalf of the Company;
(e) A certificate of an executive officer of the Non-Competition AgreementsCompany, duly executed by each individual listed on Schedule 6.1(edated as of the Closing Date, certifying to the satisfaction of the conditions in Sections 6(b)(i) and (ii);; and
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified by the California Secretary of StateAn opinion, dated as of a date within five (5) Business Days of the Closing Date, from White & Case LLP, as counsel to the Company, substantially in the form agreed upon by the parties to this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sequential Brands Group, Inc.)
Closing Deliverables of the Company. At On or prior to the ClosingClosing Date (or as otherwise specified in each clause below), the Company shall deliver, deliver or cause to be delivered, delivered to Parent or any other Person designated by Parent (unless each Investor the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper formfollowing:
(a) payoff letters with respect to all Indebtedness This Purchase Agreement, dated as of the date hereof, by and among the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), Investors duly executed by the lenders thereofCompany;
(b) the Escrow Agreement, duly executed Unless otherwise agreed to by the Member Representative Company and an Investor (as to itself only), “.pdf” copies of one or more stock certificates, free and clear of all restrictive or other legends (except as provided in Section 3 hereof) or statements from the Escrow AgentCompany’s transfer agent evidencing the Securities purchased by such Investor hereunder, registered in the name of such Investor as set forth in Appendix A hereto (the “Stock Certificates”) with the original Stock Certificates to be delivered by the Company’s transfer agent to the registered address of each Investor, as set forth in Appendix A hereto, promptly after the Closing Date but no later than five business days from the Closing Date;
(c) a copy That certain registration rights agreement, dated as of the authorizing Closing Date, by and among the Company and the investors signatory thereto (the “Registration Rights Agreement”) duly executed by the Company;
(d) A certificate of the secretary of the Company, dated as of the Closing Date, (i) certifying resolutions of adopted by the Company’s board of managersdirectors, certified by the secretary of the Company as having been or a duly and validly adopted and being in full force and effectauthorized committee thereof, authorizing the execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, and the consummation of approving the transactions contemplated hereby in this Purchase Agreement, the Registration Rights Agreement and thereby;
any other documents or agreements executed in connection with the transactions contemplated hereunder (dtogether, the “Transaction Documents”) a copy and the issuance of the Company Member ApprovalSecurities, certified by (ii) certifying the secretary current versions of the Company Company’s certificate of incorporation and by-laws, each as having been duly amended, and validly adopted (iii) certifying as to the signatures and being in full force authority of persons signing the Transaction Documents and effectrelated documents on behalf of the Company;
(e) A certificate of an executive officer of the Non-Competition AgreementsCompany, duly executed by each individual listed on Schedule 6.1(edated as of the Closing Date, certifying to the satisfaction of the conditions in Sections 6(b)(i) and (ii);; and
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified by the California Secretary of StateAn opinion, dated as of a date within five (5) Business Days of the Closing Date, from White & Case LLP, as counsel to the Company, stating that (i) the Securities will be validly issued, fully paid and non-assessable and (ii) it is not necessary in connection with the issuance, sale and delivery to the Investors of the Securities by the Company under the circumstances contemplated by this Purchase Agreement and the Offering Materials to register the Securities under the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sequential Brands Group, Inc.)
Closing Deliverables of the Company. At On or prior to the ClosingClosing Date, the Company shall deliver, deliver or cause to be delivered, delivered to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper formfollowing:
(a) payoff letters with respect to all Indebtedness of the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), executed by the lenders thereof;
(bi) the Escrow Agreement, duly executed by the Member Representative and the Escrow AgentStockholder Representative;
(cii) the Distribution Agent Agreement, duly executed by the Stockholder Representative;
(iii) a copy of certificate, dated the authorizing resolutions Closing Date and signed by a duly authorized officer of the Company’s board , certifying that attached thereto are true and complete copies of managers, certified (A) all resolutions adopted by the secretary of the Company as having been duly and validly adopted and being in full force and effect, Board authorizing the execution execution, delivery and delivery performance of this Agreement and the Ancillary Agreements to which the Company is a party, Documents and the consummation of the transactions contemplated hereby and thereby;
, (dB) a copy resolutions of the stockholders of the Company Member Approvalapproving the Merger and adopting this Agreement, certified signed by the secretary stockholders of the Company as having been duly representing at least the Requisite Company Vote, and validly adopted and being that all such resolutions are in full force and effecteffect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(eiv) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that (A) attached thereto are true and complete copies of the Company Charter Documents and (B) the Non-Competition Agreementsnames and signatures of the officers of the Company authorized to sign this Agreement, duly executed by each individual listed on Schedule 6.1(e)the Ancillary Documents and the other documents to be delivered hereunder and thereunder;
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(iv) a good standing certificate for of the Company certified by from the California Secretary of StateState of the State of Delaware;
(vi) the Closing Statement contemplated in Section 2.16(a);
(vii) the Consideration Spreadsheet contemplated in Section 2.17;
(viii) a certificate, in the form required by Treasury Regulation Section 1.897-2(h) and 1.1445-2(c)(3), dated as of the Closing Date, to the effect that no interest in the Company is a date within five U.S. real property interest; and
(5ix) Business Days Equity Right Termination Agreements duly executed and delivered to the Company terminating any and all Equity Rights that do not, automatically without the payment of any consideration or the taking of any action, terminate or expire by their terms effective as of the Closing Date(“Non-Terminating Rights”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Merit Medical Systems Inc)
Closing Deliverables of the Company. At the Closing, the Company shall deliver, or cause to be delivered, to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper form:
(a) payoff The consents of Governmental Authorities set forth on Schedule 7.1(a) and all consents and approvals from third parties identified on Schedule 7.1(a);
(b) A certificate, dated as of the Closing Date, that complies with Sections 1445 and 897 of the Code and the Treasury Regulations promulgated thereunder certifying that an interest in the Company is not a “U.S. real property interest” within the meaning of and in accordance with Sections 897 and 1445 of the Code and the Treasury Regulations promulgated thereunder;
(c) Payoff letters with respect to all the Indebtedness of the Company and its Subsidiaries, as set forth Subsidiaries identified on Schedule 6.1(a7.1(c) (the “Payoff Letters”), ) executed by the lenders thereof;
, the form and substance of which Parent shall have had reasonable opportunity to comment on, evidencing the aggregate amount (bthe “Debt Payoff Amount”) the Escrow Agreement, duly executed by the Member Representative and the Escrow Agent;
(c) a copy of such Indebtedness outstanding as of the authorizing resolutions Closing Date (including any interest accrued thereon and any prepayment or similar penalties, premiums and expenses associated with the prepayment of such Indebtedness on the Company’s board of managersClosing Date) and an agreement that, certified if such Debt Payoff Amount so identified is paid to such lender on the Closing Date, such Indebtedness (other than contingent obligations which by the secretary of their terms survive payment in full) shall be repaid in full and that all Liens securing such Indebtedness and affecting the Company as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery or any of this Agreement and the Ancillary Agreements to which the Company is a party, and the consummation of the transactions contemplated hereby and therebyits Subsidiaries will be released;
(d) a copy of The Equityholder Representative and the Company Member Approval, certified by Escrow Agent shall have executed and delivered the secretary of the Company as having been duly and validly adopted and being in full force and effectWorking Capital Escrow Agreement;
(e) the Non-Competition Agreements, duly executed by each individual listed on Schedule 6.1(e);
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified by the California Secretary of State, dated as of a date within five (5) Business Days of the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (RPX Corp)
Closing Deliverables of the Company. At In addition to any other documents specifically required to be delivered pursuant to this Agreement, at the Closing, the Company shall deliver, deliver or cause to be delivered, delivered to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper formBuyer:
(ai) payoff letters with respect to all Indebtedness the Articles of Merger, duly executed on behalf of the Company and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), executed by the lenders thereofCompany;
(b) the Escrow Agreement, duly executed by the Member Representative and the Escrow Agent;
(cii) a copy certificate of the authorizing resolutions an officer of the Company’s board , dated as of managersthe Closing Date, certified certifying and attaching (A) the Governing Documents of the Company; (B) the resolutions, duly adopted by the secretary of the Company as having been duly and validly adopted and being in full force and effectBoard, authorizing and approving the execution Company’s execution, delivery and delivery performance of this Agreement and the Ancillary Agreements Transaction Documents to which the Company is a party, party and the consummation of the transactions contemplated hereby and thereby;
(d) , including a copy of the Company Member Approval, certified by the secretary of the Company as having statement that such resolutions have not been duly rescinded or modified and validly adopted and being remain in full force and effecteffect as of the Closing Date; (C) the resolutions, duly adopted by the Shareholders holding the requisite amount of membership interest of the Company, authorizing and approving the Company’s execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby, including a statement that such resolutions have not been rescinded or modified and remain in full force and effect as of the Closing Date; and (D) an incumbency certificate executed by the an appropriate officer of the Company certifying as to the incumbency and signature of the officer(s) of the Company executing any of the Transaction Documents;
(eiii) the Non-Competition Agreementsa closing certificate, duly executed by each individual listed on Schedule 6.1(e)the Company, certifying that the conditions set forth in Section 6.1 and Section 6.2 have been met;
(fiv) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Companyemployment agreement, in substantially the form and substance reasonably satisfactory to Parentattached hereto as Exhibit B (the “Raczykowski Employment Agreement”), duly executed by such Persons; andXxx Xxxxxxxxxxx;
(iv) a good standing certificate for the Company certified of existence or equivalent issued by the California Secretary of StateState of the State of Washington, dated as of a date within five reasonably close to the Closing Date;
(5vi) Business Days an affidavit of non-foreign status, in a form conforming to the requirements of Section 1.1445-2(b)(2) of the Treasury Regulations, duly executed by the Company and dated as of the Closing Date;
(vii) the resignation of Xxxxxxx Xxxxx as a director, officer, manager and employee of the Company;
(viii) a written real estate lease agreement for the Company’s office located at 0000 X Xxxxx Xxx, Xxxxxxx, XX 00000, effective as of the Closing Date, in form and substance satisfactory to Buyer, duly executed by Xxxxxxx Xxxxx and the Company;
(ix) an opinion from Xxxxxxxxxxx Xxxxxx, counsel for the Company (“Xxxxxxxxxxx Xxxxxx”) in form and substance satisfactory to Buyer;
(x) the Company’s corporate minute books, ledgers and records, including all documents supporting the Company’s filed Tax Returns;
(xi) one or more CD-ROMs or DVDs in PC-readable format, that contain readable working Adobe or other (e.g., Microsoft Office) portable document format files that set forth all of the documents made available or provided to Buyer prior to and as of the Closing Date on the electronic data site;
(i) Xxxxx Promissory Note, duly executed by Xxxxxxx Xxxxx;
(xii) Raczykowski Promissory Note, duly executed by Xxx Xxxxxxxxxxx; and
(xiii) such other instruments or documents reasonably deemed necessary by Buyer to effect the Closing.
Appears in 1 contract
Samples: Merger Agreement
Closing Deliverables of the Company. At the ClosingClosing (or, in the case of the Payoff Letters, at least three (3) Business Days prior to the Closing Date), the Company shall deliver, or cause to be delivered, to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper form:
(a) the Consents of Governmental Authorities set forth on Schedule 7.1(a);
(b) the third party Consents set forth on Schedule 7.1(b);
(c) a certificate, dated as of the Closing Date, that complies with Sections 1445 and 897 of the Code and the Treasury Regulations promulgated thereunder certifying that an interest in the Company is not a “U.S. real property interest” within the meaning of and in accordance with Sections 897 and 1445 of the Code and the Treasury Regulations promulgated thereunder;
(d) payoff letters with respect to all the estimated Closing Indebtedness of the Company and its Subsidiaries, as set forth Entities identified on Schedule 6.1(a) the Estimated Closing Date Statement (the “Payoff Letters”), ) executed by the lenders thereof, together with any termination statements on Form UCC-3 or other releases reasonably necessary to evidence the satisfaction and release of all Liens on the assets of the Company Entities in connection with such Indebtedness;
(be) the resignations (in form and substance reasonably satisfactory to Parent) of those directors, managers and officers of the Company Entities of whom Parent shall have notified the Company at least three (3) Business Days prior to the Closing Date;
(f) a copy of the Escrow Agreement, duly executed by the Member Company Equityholder Representative and the Escrow Agent;
(cg) a copy of the authorizing resolutions Restrictive Covenant Agreement, duly executed by Parent and X. Xxxx;
(h) a copy of each of the Employment Agreements, duly executed by the Company, on the one hand, and the applicable Key Employee, on the other hand;
(i) an estoppel certificate and subordination and non-disturbance agreement in customary form from the owner of each of the Leased Real Property locations set forth on Schedule 7.1(i);
(j) a copy of the consent, approval and adoption of this Agreement, and to the extent necessary, the other Ancillary Agreements, and the transactions contemplated hereby and thereby (including the Merger) by 100% of the Company Stockholders, which consent shall be duly and validly adopted and in full force and effect (the “Required Stockholder Consent”);
(k) certificates of good standing (or the equivalent), dated not more than ten (10) days prior to the Closing Date, with respect to each Company Entity, issued by each such Company Entity’s board state of managersorganization and each jurisdiction in which such Company Entity is licensed or qualified to conduct business as a foreign company;
(l) a certificate dated as of the Closing Date, certified duly executed by the secretary of the Company, certifying as to: (i) an attached copy of the resolutions of the board of directors of the Company as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery of this Agreement and the other Ancillary Agreements to which the Company is a partyAgreements, and the consummation of the transactions contemplated hereby and thereby;
thereby (d) a copy of including the Company Member ApprovalMerger), certified by the secretary of the Company as having stating that such resolutions has been duly and validly adopted and being in full force and effecteffect and have not been amended, modified, revoked or rescinded; (ii) the incumbency, authority and specimen signature of each officer of the Company executing this Agreement and any Ancillary Agreements on behalf of the Company; and (iii) correct and complete copies of the Organizational Documents of the Company;
(em) the Non-Competition Agreements, Certificate of Merger duly executed by each individual listed on Schedule 6.1(e)the Company;
(fn) tax clearance certificates from the appropriate tax authority of each State in which any Company Entity transactions business, with respect to the payment by the applicable Company Entity of sales taxes for all authorizationsperiods prior to the Accounting Time;
(o) a Letter of Transmittal and all other accompanying documentation required pursuant to Section 2.9(b) from each Company Stockholder, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and fully executed by an the applicable Person, Company Stockholder and otherwise in such form as is reasonably acceptable to Parent;
(gp) a properly the Omnibus Option Cancellation and Release Agreement, fully executed statement prepared by each Optionholder;
(q) evidence of the acceleration of vesting and cancellation of the Options and the termination of the Equity Incentive Plan and award agreements in accordance with Treasury Regulations Section 1.1445-11T(d)(22.6(d) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent;
(r) all minute books, duly executed stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of each Company Entity;
(s) correct and complete copies of the Organizational Documents of each Company Entity (other than the Company), certified by the secretary of such PersonsCompany Entity; and
(it) a good standing certificate for USB drive or similar electronic copy with the Company certified true, complete and correct contents of the “Project Octane” electronic data room created in connection with the transactions contemplated by the California Secretary of State, dated this Agreement as of a date within five (5) Business Days of the Closing Date.
Appears in 1 contract
Closing Deliverables of the Company. At the Closing, the Company shall deliver, or cause to be delivered, to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), the following documents, in each case duly executed or otherwise in proper form:
(a) Customary payoff letters with respect to all the Indebtedness of the Company executed by the lenders thereof allowing for the for the payoff, discharge and its Subsidiaries, as set forth termination in full on Schedule 6.1(a) the Closing Date of all Indebtedness and any associated Liens (the “Payoff Letters”), executed by the lenders thereof;
(b) Agreement of Merger and the Officers’ Certificate, each duly executed on behalf of the Company;
(c) Certificate of Merger, duly executed on behalf of the Company;
(d) the Escrow Agreement, duly executed by the Member Representative and the Escrow AgentEquityholder Representative;
(ce) a copy of the authorizing resolutions of the Company’s board of managersdirectors, certified by the secretary an officer of the Company as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, party and the consummation of the transactions contemplated hereby and thereby;
(df) a copy of the Company Member Approval, certified by the secretary of the Company as having been duly and validly adopted and being in full force and effect;
(e) the Non-Competition Agreements, duly executed by each individual listed on Schedule 6.1(e);
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified by the California Secretary of Statecertificate, dated as of a date within five ten (510) Business Days of the Closing Date, from the jurisdiction of organization of the Company certifying that the Company is in good standing (or the equivalent concept in such applicable jurisdiction);
(g) a valid Internal Revenue Service Form W-9 from the Company;
(h) a certificate, in form reasonably satisfactory to Parent, of the Company, issued pursuant to and in compliance with (including the making of any required filings with the IRS) Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that as of the Closing Date an interest in the Company is not a U.S. real property interest within the meaning of Section 897 of the Code;
(i) the articles of incorporation of the Company, certified within ten (10) Business Days of the Closing Date, from the jurisdiction of organization of the Company;
(j) resignation of all members of the board of directors of the Company;
(k) terminations of the Company Option Plans and the Stockholders Agreement;
(l) duly executed Debt Cancellation Agreements evidencing the cancellation of all Company Promissory Notes; and
(m) an operating agreement of Parent, in the form attached hereto as Exhibit I (the “Parent Operating Agreement”), duly executed by the Rollover Sellers; and
(n) evidence of the Company’s receipt of a check payable to the Company for the repayment of Company Promissory Notes owed by Xxxxxxx Xxxxxx and having an aggregate amount payable of at least the amount set forth in Schedule 6.1(p).
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Closing Deliverables of the Company. At the Closing, Closing the Company shall deliver, or cause to be delivered, to Parent or any other Person designated by Parent (unless the delivery is waived in writing by Parent), deliver the following documents, in each case duly executed or otherwise in proper formadditional documents to the Purchaser:
(a) payoff letters with respect to all Indebtedness A true and complete execution copy of each of the Company Indenture and its Subsidiaries, as set forth on Schedule 6.1(a) (the “Payoff Letters”), executed by the lenders thereof;
(b) the Escrow Security Agreement, duly executed by all parties thereto.
(b) Evidence of filing of financing statements (Form UCC-1, Form UCC-3 or such other financing statements or similar notices as shall be required by local law) as are necessary or desirable in order to evidence and perfect the Member Representative Liens in favor of the Collateral Agent in the Collateral, which financing statements shall be satisfactory in form and substance to the Escrow Agent;Collateral Agent and shall comply in all respects with the requirements of Section 3.02 of the Security Agreement.
(c) a copy Certificates of an executive officer of the Company dated as of the date hereof: (i) attaching copies, certified by such officer as true and complete, of resolutions of the board of directors of the Company authorizing resolutions and approving the execution, delivery and performance by the Company of the Transaction Documents and the transactions contemplated herein and therein; (ii) setting forth the incumbency of the officer or officers of the Company who have executed and delivered the Transaction Documents, including therein a signature specimen of each officer or officers; (iii) attaching copies, certified by such officer as true and complete, of each of the articles of organization and by-laws of the Company as in effect on the date hereof; and (iv) attaching copies, certified by such officer as true and complete, of long form good standing certificates of the appropriate Governmental Authority of the Company’s board jurisdiction of managersincorporation, certified stating that the Company is in good standing under the laws of such jurisdiction.
(d) The written opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, as transaction counsel to the Company, addressed to the Purchaser, in the form of Exhibit A hereto.
(e) A copy of the Payment Direction (as defined in the Security Agreement) executed by the secretary Company.
(f) Certificates, agreements and other documentation relating to corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Indenture and the Security Agreement, and all other legal matters relating to this Agreement and the transactions contemplated hereby in a form reasonably satisfactory to counsel for the Purchaser.
(g) Such further certificates and documents of the Company as having been duly and validly adopted and being in full force and effect, authorizing the execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby;
(d) a copy of the Company Member Approval, certified by the secretary of the Company as having been duly and validly adopted and being in full force and effect;
(e) the Non-Competition Agreements, duly executed by each individual listed on Schedule 6.1(e);
(f) all authorizations, consents, approvals, or waivers that are listed on Schedule 3.4(a), each in a form, and executed by an applicable Person, Purchaser may reasonably acceptable to Parent;
(g) a properly executed statement prepared in accordance with Treasury Regulations Section 1.1445-11T(d)(2) certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(h) the resignations of each manager of the Company, in form and substance reasonably satisfactory to Parent, duly executed by such Persons; and
(i) a good standing certificate for the Company certified by the California Secretary of State, dated as of a date within five (5) Business Days of the Closing Daterequest.
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Samples: Note Purchase Agreement (Vertex Pharmaceuticals Inc / Ma)
