Closing Deliveries. (i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers); (ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens. (iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date. (iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 6 contracts
Samples: Purchase and Settlement Agreement (Rivernorth Capital Management, LLC), Purchase and Settlement Agreement (Tannenbaum Leonard M), Purchase and Settlement Agreement (Tannenbaum Leonard M)
Closing Deliveries. At the closing of the redemption of Offered Units, (i) On the Closing DateExercising Partners shall execute and deliver (A) proper instruments of transfer and assignment of the Offered Units, subject to Section 1.3(d)(iv(B) below and in accordance with Section 1.2(a), a Unit Certificate or Unit Certificates representing the Buyers shall deliver or cause number of Offered Units to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two so redeemed and (2C) Business Days prior to the Closing Date (it being understood that, (1) representations and warranties with respect to Holdingstheir due authority to sell all of the right, the delivery of a release instruction title and interest in and to such Offered Units to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement General Partner and, with respect to the Escrow Funds deposited by Holdings status of the Offered Units, that such Offered Units are free and clear of all liens, claims and encumbrances whatsoever, and (2ii) the General Partner shall (A) if shares of Common Stock are to be issued, execute and deliver representations and warranties with respect to its due authority to issue the shares of Common Stock to be received in the exchange; deliver an opinion of counsel for the General Partner, reasonably satisfactory to the Exercising Partners, to the effect that such shares of Common Stock have been duly authorized, are validly issued, fully-paid and non-assessable; and deliver a stock certificate or certificates evidencing the shares of Common Stock to be issued and registered in the name(s) of the Exercising Partner(s) or its or their designee(s), and/or (B) if cash is to be paid for Partnership Units, deliver a check in the amount of any dividends that the Company has declared with a record date on or prior cash due to the Closing DateExercising Partner(s) at such closing. If any Exercising Partner shall have delivered a Unit Certificate or Unit Certificates representing a number of Partnership Units in excess of the number of Offered Units, and the Partnership shall issue to such Exercising Partner, at the expense of the Partnership, a new Unit Certificate covering the number of Partnership Units representing the unredeemed portion of the Unit Certificate or Unit Certificates so surrendered, which new Unit Certificate shall entitle the Buyers are entitled holder thereof to receive under the terms herein, shall, such rights of ownership of Partnership Units to the same extent as if the Buyers have Unit Certificate covering such unredeemed Partnership Units had not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange been surrendered for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensredemption.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 5 contracts
Samples: Limited Partnership Agreement (Philips International Realty Corp), Limited Partnership Agreement (Mack Cali Realty Corp), Limited Partnership Agreement (Philips International Realty Corp)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Investor shall deliver deliver, or cause to be delivered delivered, to Sellers the cash amounts set forth on Schedule I hereto in respect of each SellerSellers, the following:
(i) the Aggregate Purchase Price by wire transfer of immediately available funds to the bank account(s) of the Sellers set forth in Schedule C;
(ii) a duly executed counterpart of the Investor Rights Agreement; and
(iii) a certificate of the Investor certifying (A) its authorization of the execution and delivery of the Investment Documents and the consummation of the transactions contemplated hereby and thereby, and (B) as to such accounts other matters set forth therein, in the form attached as RiverNorth Capital on behalf of Schedule 2.3(a)(iii) hereto.
(b) At the Closing, the Sellers has specified in writing at least two (2) Business Days prior shall deliver, or cause to be delivered, to the Closing Date Investor the following:
(it being understood thati) the original share certificates representing all of the Sale Shares, accompanied by an instrument of transfer pertaining to the Sale Shares, duly signed by each of the Sellers;
(1ii) with respect to Holdingscopies of the written resolutions of the Board of Directors and Shareholders of the Company, in the form attached as Schedule 2.3(b)(ii) hereto, as certified by a director of the Company (A) approving the entering into and authorizing the execution and performance of this Agreement and the Investor Rights Agreement and the transactions contemplated hereby and thereby; and (B) adopting the Memorandum and Articles;
(iii) a duly executed counterpart of the Investor Rights Agreement;
(iv) a certificate of the Sellers annexing a copy of the Memorandum and Articles and certifying (A) their authorization of the execution and delivery of a release instruction to the Escrow Agent in accordance with Investment Documents and the terms consummation of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings transactions contemplated hereby and thereby, and (2B) as to such other matters set forth therein, in the amount form attached as Schedule 2.3(b)(iv) hereto;
(v) a certified copy of any dividends that a certificate of good standing of the Company has declared with a record date on or issued by the Registry of Companies of the Cayman Islands, dated not earlier than fourteen (14) days prior to the Closing Date;
(vi) a certified copy of a certificate of incumbency of UIAL issued by its registered agent, and which the Buyers are entitled to receive under the terms herein, shall, dated not earlier than fourteen (14) days prior to the extent Closing Date;
(vii) a legal opinion in respect of the Buyers have not received such dividends Company in an agreed form, dated as of the Closing Date, reduce issued by Xxxxxx and Xxxxxx, the aggregate amount payable by the Buyers to Sellers on Company’s Cayman Islands counsel;
(viii) a legal opinion in an agreed form, dated as of the Closing Date, issued by Shearman & Sterling LLP, the Company’s U.S. counsel; providedand
(ix) a legal opinion in respect of the FIE in an agreed form, howeverdated as of the Closing Date, issued by Commerce & Finance Law Offices, the Company’s PRC counsel.
(c) The Sellers shall, by no such offset with respect later than the close of business on the first (1st) Business Day immediately following the Closing Date, deliver, or cause to dividends be delivered, to the Investor a facsimile of the register of members of the Company, updated to reflect the transfer of the Sale Shares to the Investor.
(d) As promptly as practicable after the Closing and in any event by no later than seven (7) days after the Closing Date, the Sellers shall apply deliver, or cause to be delivered, to the Investor:
(i) a copy of the updated register of members of the Company Shares not actually purchased referred to in Section 2.3(c), as certified by Buyers)the registered agent of the Company;
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), a legal opinion in respect of the Purchased Shares to be purchased on Sellers in an agreed form issued by Xxxxxx and Xxxxxx, the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Company’s Cayman Islands counsel; and
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares evidence that the Buyers are obligated to purchase on the Modified Closing Date Memorandum and (2) Sellers shall take any such action Articles have been duly filed with and/or acknowledged as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number duly filed by the quotient resulting from Registrar of Company Registry in the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofCayman Islands.
Appears in 4 contracts
Samples: Investment Agreement (China Mass Media International Advertising Corp.), Investment Agreement (China Mass Media International Advertising Corp.), Investment Agreement (China Mass Media International Advertising Corp.)
Closing Deliveries. (i) On the Closing Date, subject the parties shall make, execute, acknowledge and deliver the legal documents and items required to Section 1.3(d)(ivbe executed or delivered in connection with the Closing (collectively the “Closing Documents”) below to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in accordance with Section 1.2(a), the Buyers shall deliver or cause connection therewith. The Closing Documents and other items to be delivered at the Closing are the following:
(a) The Amendment or other evidence of the transfer of OP Units to Sellers the cash amounts Contributors and evidence of the DTC Registered REIT Stock, which shall bear the legend set forth on Schedule I hereto in respect the Articles of each SellerAmendment and Restatement of the Company, by wire transfer of as amended and restated and in effect immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date in substantially the form attached as Exhibit B (it being understood that, (1the “Articles”) with respect to Holdings, the delivery or a written statement of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends information that the Company has declared with will furnish a record date full statement about certain restrictions on or prior transferability to a stockholder on request and without charge, which restrictions shall be substantially the Closing Date, and which same as those set forth in the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Articles;
(iib) On Any other documents that are in the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver possession of a Contributor or cause to which can be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any obtained through such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated Contributor’s reasonable efforts which are reasonably requested by the BuyersCompany or the Operating Partnership and are reasonably necessary or desirable to assign, in transfer, convey, contribute and deliver the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased SharesContributed Interests directly, free and clear of any all Liens and all Liens.effectuate the transactions contemplated hereby;
(iiic) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of The Operating Partnership and the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date one hand and (2) Sellers the Helmsley Group Members on the other hand shall take any such action provide to the other a certified copy of all appropriate corporate resolutions or partnership, limited liability company or other actions, as would be required under Section 1.3(d)(ii) in respect of applicable, authorizing the execution, delivery and performance by the Operating Partnership and the Company Shares that Sellers are obligated to sell (if so requested by a Helmsley Group Member) and any Helmsley Group Member (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(d) The Operating Partnership and the Company on the Modified Closing Date.
(iv) Notwithstanding anything one hand and the Helmsley Group Members on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced except to the amount derived by multiplying extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date);
(e) The Contributors shall each provide the Operating Partnership with a certificate of non-foreign status that complies in form and in substance with Treasury Regulation Section 1.1445-2(b); and
(f) Any applicable books, records and Organizational Documents relating to each Contributed Helmsley Entity that are in the possession of each Contributed Helmsley Entity or the applicable Contributor or which can be obtained through such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofentities’ reasonable efforts.
Appears in 3 contracts
Samples: Contribution Agreement, Contribution Agreement (Empire State Realty Trust, Inc.), Contribution Agreement (Empire State Realty OP, L.P.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Investor the cash amounts following:
(i) one or more stock certificates (or copies thereof provided by the Transfer Agent), free and clear of all restrictive and other legends (except as expressly provided in Section 4.1(b)), evidencing such number of Common Shares set forth opposite such Investor’s name on Schedule I Exhibit A hereto under the heading “Common Shares,” registered in respect the name of such Investor;
(ii) a Warrant, issued in the name of such Investor, pursuant to which such Investor shall have the right to acquire such number of Warrant Shares set forth opposite such Investor’s name on Exhibit A hereto under the heading “Warrant Shares”;
(iii) a legal opinion of Company Counsel dated the Closing Date, in the form of Exhibit D, executed by such counsel and delivered to the Investors and the Agent;
(iv) a duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent;
(v) the Company shall have delivered to each SellerInvestor a certificate executed by the Secretary of the Company and dated as of the Closing Date, certifying as to (i) the resolutions adopted by wire transfer the Company’s board of immediately available funds to such accounts directors approving this Agreement, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as RiverNorth Capital on behalf in effect at the Closing;
(vi) Each and every representation and warranty of Sellers has specified in writing at least two (2) Business Days prior to the Company shall be true and correct as of the date when made and as of the Closing Date as though originally made at that time (it being understood that, (1) with respect to Holdings, the delivery except for representations and warranties that speak as of a release instruction to specific date, which shall be true and correct as of such specific date) and the Escrow Agent Company shall have performed, satisfied and complied in accordance all respects with the terms of the Escrow Agreement shall covenants, agreements and conditions required to be deemed to satisfy this requirement performed, satisfied or complied with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on at or prior to the Closing Date. The Company shall have delivered to each Investor a certificate executed by the Chief Executive Officer of the Company, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce to the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)foregoing effect;
(iivii) On a duly executed Registration Rights Agreement; and
(viii) approval by each applicable Trading Market of an additional shares listing application covering all of the Closing DateRegistrable Securities.
(b) At the Closing, subject to Section 1.3(d)(iv) below, Sellers each Investor shall (1) deliver or cause to be delivered to the Buyers Company the certificates, if any, representing the Purchased Shares, following:
(i) a duly and validly endorsed or accompanied by stock powers executed Securities Purchase Agreement;
(ii) a duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Registration Rights Agreement; and
(iii) On the Modified Closing Datepurchase price set forth opposite such Investor’s name on Exhibit A hereto under the heading “Purchase Price” in United States dollars and in immediately available funds, (1) the Buyers shall take any by wire transfer to an account designated in writing to such action as would be required under Section 1.3(d)(i) in respect of Investor by the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any for such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Datepurpose.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Pacific Ethanol, Inc.), Securities Purchase Agreement (Pacific Ethanol, Inc.), Securities Purchase Agreement (Pacific Ethanol, Inc.)
Closing Deliveries. (i) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers parties hereto shall take the following actions:
(a) Seller shall deliver to Buyer one or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms more certificates representing all of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed executed in blank or accompanied by stock powers duly and validly executed in blank, or in proper form for transfer, with all appropriate stock transfer tax stamps affixed;
(2b) Seller shall deliver to Buyer the minute books, stock ledgers, corporate seal and all other corporate books and records of the Company and the Subsidiaries, which delivery may be effected by leaving the foregoing books, ledgers, seal and records in lieu the offices of any such certificates, Sellers may arrange for an appropriate electronic transfer the Company and the Subsidiaries as of the Closing Date;
(including through Deposit c) Buyer shall deliver to Seller the Purchase Price as due and Withdrawal payable at Custodian the Closing (taking into account the Non-Disputed Initial Adjustment Amount) (the “DWACClosing Purchase Price Payment”)) of , less the Purchased Shares Deposit, by Wire Transfer. Any disputed adjustments to one or more accounts designated by the Buyers, in the case of each of (1) Purchase Price shall be resolved and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended paid in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens3.3 below.
(iiid) On Each party hereto shall deliver to the Modified Closing Dateother the opinions, certificates and other documents, as applicable, required to be delivered by such party pursuant to Article VIII hereof; and
(1e) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Upon receipt of the Company Shares that the Buyers are obligated Shares, Buyer shall deliver to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect Seller a receipt evidencing receipt of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contraryand, unless the Buyers would not be obligated to purchase the Purchased Shares by reason upon receipt of the failure of any Closing Condition Purchase Price Payment, Seller shall deliver to be fulfilled as Buyer a receipt evidencing receipt of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofPurchase Price Payment.
Appears in 3 contracts
Samples: Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/)
Closing Deliveries. (a) The closing of the purchase and sale (the “Purchase”) of the Subject Shares (the “Closing”) shall take place by remote communications and by the exchange of signatures by electronic transmission (including DocuSign) or, if or to the extent such an exchange is not practicable, at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the second Business Day after the satisfaction or waiver (to the extent permitted by applicable Law) of all of the conditions set forth in Section 1.3 (other than such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at or prior to the Closing), or at such other place (or by means of remote communication) and date as the Parties may agree in writing (the actual date of the Closing, the “Closing Date”).
(b) At the Closing:
(i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Purchaser shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each SellerPurchase Price, by wire transfer of immediately available funds to the account or accounts previously designated by Sellers to Purchaser in writing; and
(ii) Each Seller shall deliver to Purchaser (A) a properly completed and duly executed Internal Revenue Service Form W-9 for such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two Seller and (2B) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement duly executed stock power with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Subject Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended sold by such Seller, endorsed in accordance with Section 1.1) blank by such Seller, or such other documentation reasonably necessary to transfer to Purchaser all right, title and sufficient to convey to the Buyers good, valid and marketable title interest in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Subject Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (sold by such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofSeller.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Ladensohn David A), Stock Purchase Agreement (Cohen Richard B), Stock Purchase Agreement (Softbank Group Corp.)
Closing Deliveries. (a) At the Closing, Escrow Agent shall deliver to Purchaser the following:
(i) On one of more stock certificates, executed in blank or with executed stock powers attached thereto, evidencing the Shares;
(ii) copies of each of the following, certified by an officer of the Company: (A) the charter and bylaws of the Company; and (B) certificates of legal existence and good standing as of a day not more than 15 days prior to the Closing Date; and
(iii) the Consultant Agreement, subject fully executed by Purchaser and Seller.
(b) At the Closing, Escrow Agent shall pay from the Deposit and deliver to Section 1.3(d)(ivSeller the following:
(i) below $95,000 by bank check or wire transfer of immediately available funds to the bank account of Seller specified by Seller in writing to Escrow Agent prior to the Closing; and
(ii) the Consultant Agreement, fully executed by Purchaser and Seller.
(c) At the Closing, Escrow Agent shall pay from the Deposit and deliver to Broker Dealer Markets Inc. (“BD Markets”) a commission payment on behalf of Seller in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect amount of each Seller, $20,000 by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf the bank account of Sellers has BD Markets specified in writing at least two (2) Business Days by BD Markets in writing to Escrow Agent prior to the Closing Date (it being understood that, (1) with respect Closing. Deliverance of this commission to Holdings, the delivery of a release instruction BD Markets will be made subject to the BD Markets having previously delivered to Escrow Agent a fully executed receipt for such payment and a full release, in accordance a form reasonably acceptable Purchaser, Seller and Escrow Agent, releasing Purchaser, Seller and Escrow Agent from any further obligation by Purchaser or Seller or Escrow Agent for any additional fee or commission in connection with the terms of the Escrow Agreement shall be deemed to satisfy transactions contemplated in this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Agreement.
(iid) On the Closing Date, subject Seller shall close the existing banking accounts of the Company with XX Xxxxxx Xxxxx and will cause all amounts in such banking accounts be paid to Section 1.3(d)(ivSeller.
(e) belowOn the Closing Date, Sellers shall (1) deliver or cause to be delivered to Purchaser will open a new bank account for the Buyers the certificates, if anyCompany and Purchaser will deposit an amount of at least $8,500, representing the Purchased Sharessum of the minimum net capital required by FINRA for the Company to retain its status as a FINRA Broker-Dealer plus a reserve sufficient to pay the full estimated cost of the Company’s 2011 outside audit and auditor’s certification, duly which will be completed in February 2012 by the CPA firm of VB&T, LLC,.
(f) On the Closing Date, Seller will deliver to Purchaser a true and validly endorsed complete schedule of any accounts receivable of the Company relating to or accompanied arising from any services performed by stock powers duly and validly executed in blank, or (2) in lieu the Company prior to the Closing Date. Purchaser will agree that the full amount of any such certificates, Sellers may arrange for an appropriate electronic transfer accounts receivable will be paid to Seller within three (including through Deposit and Withdrawal at Custodian (“DWAC”)3) business days of the Purchased Shares to one or more day on which payment of such accounts designated receivable has been received by the Buyers, in Company and cleared into the case of each of Company’s bank account.
(1g) and (2), in respect of the Purchased Shares to be purchased on On or before the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) Seller will cause the Company to have paid all ordinary operating expenses, bonding insurance premiums, and sufficient membership fees to convey FINRA relating to periods up to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) Closing Date. On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of Date the Company Shares that will assume responsibility for all such expenses relating to periods after the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(ivh) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on On the Closing Date (such amountthe term of the Consultant Agreement shall commence. On the earlier of:
1. July 17, 2012
2. The date on which the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced Company notifies Employee that the Company has two or more FINRA designated Series 24 Principals qualified to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed serve as Designated Supervisory Principals in accordance with terms FINRA rules, and, provided that Seller, serving as Employee under the Consultant Agreement, has complied with this Consultant Agreement and is not in material breach of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this the P&S Agreement. Nothing shall prevent RiverNorth from seeking , Escrow Agent will, upon receipt of a certificate directing it to compel specific performance do so signed by each of Seller and Purchaser, pay the terms this Agreement Compensation Deposit by bank check or wire transfer of immediately available funds to the bank account of Seller specified by Seller in accordance with Section 6.4 hereofwriting to Escrow Agent in such certificate.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Liquid Holdings Group LLC), Stock Purchase Agreement (Liquid Holdings Group LLC)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Investor the cash amounts set forth on Schedule I hereto in respect following (the “Company Deliverables”):
(i) a stock certificate representing a number of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior Company Shares equal to the portion of such Investor’s Investment Amount invested at the Closing Date divided by the Per Unit Purchase Price, registered in the name of such Investor;
(it being understood that, (1ii) with respect to Holdings, a certificate evidencing the delivery formation and good standing of the Company issued by the Secretary of State of Delaware as of a release instruction to the Escrow Agent in accordance with the terms date within fifteen (15) days of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date;
(iii) a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within fifteen (15) days of the Closing Date;
(iv) a certificate, executed by the Assistant Secretary of the Company and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce as to (i) the aggregate amount payable resolutions consistent with Section 3.1(c) as adopted by the Buyers Company’s Board of Directors in a form reasonably acceptable to Sellers on such Investor, (ii) the Closing Date; providedCertificate of Incorporation and (iii) the Bylaws, howevereach as in effect at the Closing;
(v) a Warrant, no registered in the name of such offset with respect Investor pursuant to dividends which such Investor shall apply have the right to acquire the number of shares of Common Stock equal to the number of Company Shares not actually purchased issuable to such Investor pursuant to Section 2.2(a)(i) multiplied by Buyersten (10);
(iivi) On the Closing Datelegal opinion of Company Counsel, subject in substantially the form previously provided to Section 1.3(d)(ivthe Investors, addressed to the Investors;
(vii) belowthe Registration Rights Agreement and any other Transaction Documents which the Company is required to execute hereunder, Sellers duly executed by the Company; and
(viii) such other documents relating to the transactions contemplated by this Agreement as such Investor or its counsel may reasonably request.
(b) At the Closing, each Investor shall (1) deliver or cause to be delivered to the Buyers Company the certificatesfollowing (the “Investor Deliverables”):
(i) the portion of its Investment Amount invested at the Closing, if anyin United States dollars and in immediately available funds, representing by wire transfer to an account designated in writing by the Purchased SharesCompany for such purpose attached hereto as Exhibit C; and
(ii) the Registration Rights Agreement, duly and validly endorsed or accompanied executed by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensInvestor.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 3 contracts
Samples: Securities Purchase Agreement (InsPro Technologies Corp), Securities Purchase Agreement (InsPro Technologies Corp), Securities Purchase Agreement (InsPro Technologies Corp)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Purchaser the cash amounts set forth on Schedule I hereto following:
(i) one or more stock certificates, free and clear of all restrictive and other legends (except as expressly provided in respect Section 4.1(b) hereof), evidencing such number of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior Shares equal to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery number of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received Units indicated below such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers Purchaser’s name on the Closing Date; providedsignature page of this Agreement, however, no registered in the name of such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Purchaser;
(ii) On an Additional Investment Right, registered in the Closing Datename of such Purchaser, subject pursuant to Section 1.3(d)(ivwhich such Purchaser shall have the right to acquire (x) belowsuch number of Underlying Shares indicated below such Purchaser’s name on the signature page of this Agreement, Sellers and (y) an Additional Investment Right Warrant to acquire such number of Underlying Shares indicated below such Purchaser’s name on the signature page of this Agreement, each on the terms set forth therein;
(iii) a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire such number of Underlying Shares indicated below such Purchaser’s name on the signature page of this Agreement, on the terms set forth therein;
(1iv) a legal opinion of Company Counsel, in the form of Exhibit C, executed by such counsel and delivered to the Purchasers; and
(v) duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(b) At the Closing, each Purchaser shall deliver or cause to be delivered to the Buyers Company an amount equal to the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated Per Unit Purchase Price multiplied by the Buyers, in the case number of each of (1) and (2), in respect of the Purchased Shares to be purchased Units indicated below such Purchaser’s name on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions signature page of this Agreement. Nothing shall prevent RiverNorth from seeking , in United States dollars and in immediately available funds, by wire transfer to compel specific performance of an account designated in writing to such Purchaser by the terms this Agreement in accordance with Section 6.4 hereofCompany for such purpose.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Worldgate Communications Inc), Securities Purchase Agreement (Worldgate Communications Inc), Securities Purchase Agreement (Worldgate Communications Inc)
Closing Deliveries. (a) At the Closing, Compost shall deliver to the Purchaser:
(i) On certificates representing the Closing DateCompany Common Stock, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire duly endorsed for transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood thatPurchaser or accompanied by duly executed assignment documents, (1) with respect to Holdings, the delivery of a release instruction which shall transfer to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect Purchaser good and valid title to the Escrow Funds deposited by Holdings Company Common Stock, free and (2) the amount clear of all liens, claims, restrictions and encumbrances of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)nature whatsoever;
(ii) On the Closing Dateevidence of all consents, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered waivers and/or approvals in form reasonably acceptable to the Buyers Purchaser with respect to the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed transactions contemplated in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date this Agreement as set forth further described on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.5.3;
(iii) On Limited Release of Claims Agreements executed by Compost, Wasteco Ventures Limited, a British Virgin Islands corporation ("Wasteco"), Wafra Acquisition Fund 7, L.P., executing such Limited Release solely to evidence its lack of objection to the Modified Closing Dateexecution of such document by Wasteco ("Wafra"), Xxx Xxxxxxxxx (1"Waxenbaum"), Xxxxx Xxxxx ("Xxxxx") the Buyers shall take any such action as would be required under Section 1.3(d)(iand Xxxxxx X. Xxxxx ("Xxxxx") in respect of releasing the Company Shares that in the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action forms attached hereto as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Exhibits C-1 through C-5;
(iv) Notwithstanding anything all corporate, accounting, business and tax records of the Company;
(v) a legal opinion from Xxxxxxxxx Traurig, counsel to Compost, in this Agreement a form attached hereto as Exhibit D.
(vi) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E hereto; and
(vii) new real property lease with respect to the contraryoffice property owned by an affiliate of Xxxxx, unless and located at 000 Xxxxxx Xxxx, Denville, New Jersey 07834, in the Buyers would form attached hereto as Exhibit F;
(viii) Covenant Not to Compete Agreement between Compost and the Purchaser, in the form attached hereto as Exhibit G.
(ix) Certificate of Incumbency of Compost;
(x) Good Standing Certificate of the Company;
(xi) Good Standing Certificate of Compost; and
(xii) Earnout Agreement between Compost and the Purchaser in the form attached hereto as Exhibit H (the "Earnout Agreement").
(b) At the Closing, the Purchaser shall deliver the following to Compost:
(i) $37,500,000 as adjusted by the Estimated Adjustment Amount set forth in Section 3.3;
(ii) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E;
(iii) Earnout Agreement, attached as Exhibit H;
(A) The Purchaser shall either provide documents confirming the removal of Compost from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or, alternatively, the Purchaser may provide an unsecured indemnity to Compost with respect to the Compost guaranties and surety obligations reasonably satisfactory to Compost and the Purchaser, and (B) the Purchaser shall either provide documents confirming the removal of Xxxxx from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or provide Xxxxx with a financial guaranty bond enforceable in the State of New Jersey from AIG or National Union (or another insurer acceptable to Xxxxx in his sole discretion) (the "Insurer") providing for payment directly to Safeco Insurance Company of the full amount of any such guaranty or surety obligation within 15 days after Xxxxx provides written notice to such Insurer that a formal demand has been made against Xxxxx. The bond may provide that if the Insurer deems the claim unjustified, the Insurer may defend against such claim in the name and place of Xxxxx and shall indemnify and hold him harmless from any cost, expense (including but not be obligated limited to purchase the Purchased Shares by reason legal fees) or liability that may arise out of the failure to pay and any delay in payment;
(v) a legal opinion of any Closing Condition to be fulfilled as of the Termination DateXxxxx Liddell & Xxxx LLP, if on the day prior counsel to the Closing DatePurchaser, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price in a form attached hereto as Exhibit I;
(vi) Good Standing Certificate of at least $46,103,000 but less than then $57,628,750 Purchaser; and
(which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes vii) Incumbency Certificate of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.Purchaser ARTICLE IV
Appears in 3 contracts
Samples: Stock Purchase Agreement (Compost America Holding Co Inc), Stock Purchase Agreement (Compost America Holding Co Inc), Stock Purchase Agreement (Compost America Holding Co Inc)
Closing Deliveries. (i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver The Vendor will have delivered or cause caused to be delivered to Sellers the cash amounts set forth on Schedule I hereto Purchaser the following, each in respect form and substance satisfactory to the Purchaser or in the form attached to this Agreement:
(i) share certificates representing the Purchased Shares duly endorsed in blank for transfer, or accompanied by an instrument of transfer transferring the Purchased Shares to the Purchaser or its nominee duly executed by the holder of record, together with evidence satisfactory to the Purchaser that the Purchaser or its nominee(s) have been entered upon the books of the Corporation as the holder of the Purchased Shares;
(ii) certified copies of: (A) the Governing Documents of each Sellerof the Purchased Corporations and the Vendor; and (B) all resolutions of the directors, and, if required, the shareholders, of the Vendor approving the entering into and completion of the transactions contemplated by this Agreement;
(iii) a certificate executed by a senior officer of the Vendor certifying the matters set out in Section 8.1(a) and 8.1(b);
(iv) a certificate of status, compliance, good standing or similar certificate with respect to each of the Purchased Corporations and the Vendor issued by the applicable Governmental Entity and, in the case of the Purchased Corporations, by wire transfer of immediately available funds to such accounts as RiverNorth Capital each jurisdiction in which it carries on behalf of Sellers has specified in writing at least business, dated not more than two (2) Business Days prior to the Closing Date Date;
(it being understood thatv) a duly executed resignation and release, (1) with respect to Holdingseffective at the Closing, the delivery of a release instruction to the Escrow Agent in accordance with the terms from each of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings directors and (2) the amount corporate officers of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as either of the Closing DatePurchased Corporations, reduce substantially in the aggregate amount payable by form of the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyersresignation and release in Schedule 8.1(v);
(iivi) On a duly executed release in favour of the Closing DateCorporation from the Vendor, subject to Section 1.3(d)(ivin the form of the release in Schedule 8.1(vi);
(vii) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly Books and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu Records of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) each of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Corporations; and
(iiiviii) On such other documents and ancillary agreements as contemplated herein or therein or as the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DatePurchaser may otherwise reasonably require.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 3 contracts
Samples: Share Purchase Agreement (Cannapharmarx, Inc.), Share Purchase Agreement, Share Purchase Agreement
Closing Deliveries. (i) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers parties hereto shall deliver or cause make the following deliveries:
(a) Elk Creek shall pay the Purchase Price under the Elk Creek Options to be delivered to Sellers the Xxxxxxxxx Entities by tendering the Elk Creek Notes. Elk Creek shall pay $5,000,000 in cash amounts set forth on Schedule I hereto in respect of each Seller, for the Purchased Interest by wire transfer of immediately available funds to such accounts account(s) as RiverNorth Capital on behalf of Sellers has specified designated by the Xxxxxxxxx Entities in writing written instructions delivered to Elk Creek at least two (2) Business Days three business days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Closing.
(iib) On Western Diamond and Western Land shall deliver the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, Membership Interest free and clear of any liens or encumbrances (other than liens securing the PNC Financing) pursuant to an assignment of membership interests in the form attached hereto as Exhibit B, and all Lienssuch further instruments and documents as Elk Creek shall deem reasonably necessary to effectuate the sale and transfer of the Membership Interest free and clear of liens and encumbrances (other than the liens securing the PNC Financing), including without limitation the mortgages securing the Patriot Notes. The Xxxxxxxxx Entities also shall deliver to Elk Creek a certificate of non-foreign status that complies with Treasury Regulation 1.1445-2(b)(2).
(c) The Xxxxxxxxx Entities shall cause Xxxxxxxxx Coal Company, Inc. to enter into new leases for each parcel of the Subject Assets, excluding the parcels described in the instruments set forth in subsections (ii) and (iii) On of Exhibit A, with the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect post-closing joint owners of each parcel of the Company Shares that Subject Assets (i.e., WMD and the Buyers are obligated to purchase on the Modified Closing Date and (2remaining owner, either Western Diamond or Western Land) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject pursuant to the terms and conditions of this Agreementthat certain Coal Mining Lease, substantially in the form set forth on Exhibit C attached hereto. Nothing shall prevent RiverNorth from seeking to compel specific performance If, at the Closing, the Xxxxxxxxx Entities have in place any inter-company leases or subleases of the terms this Agreement Subject Assets that are inconsistent in accordance any respect with Section 6.4 hereofthe Coal Mining Lease, the Xxxxxxxxx Entities shall cause such inter-company leases or subleases to be terminated.
Appears in 3 contracts
Samples: Option Amendment, Option Exercise and Membership Interest Purchase Agreement (Armstrong Resource Partners, L.P.), Option Amendment, Option Exercise and Membership Interest Purchase Agreement (Armstrong Energy, Inc.), Option Amendment, Option Exercise and Membership Interest Purchase Agreement (Armstrong Energy, Inc.)
Closing Deliveries. (a) At the Closing, Parent shall:
(i) On the Closing Datepay, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Sellerpaid, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior an amount equal to the Closing Date (it being understood thatCash Payment minus the Deposit to, (1) with respect to Holdingsor as directed by, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Transferors;
(ii) On deliver a written direction to the Closing DateStakeholder to release the Deposit to, subject to Section 1.3(d)(iv) belowor as directed by, Sellers shall the Transferors;
(1iii) deliver original stock certificates evidencing the Stock Consideration to, or as directed by, the Transferors;
(iv) deliver, or cause to be delivered delivered, to the Buyers Transferors the certificatesTransaction Documents duly executed by the Acquiring Parties, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blankas applicable; and
(v) deliver, or (2) in lieu of any such certificatescause to be delivered, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of to the Purchased Shares to one or more accounts designated by the BuyersTransferors a certificate, in form and substance reasonably satisfactory to the case Transferors, signed by an authorized officer of each of the Acquiring Parties certifying the matters described in Section 7.1.
(1b) At the Closing, the Transferor Parties shall, jointly and severally:
(2)i) deliver, or cause to be delivered, to the Acquiror the Transferred Assets, including, without limitation, copies of all books, records, files, and documents of the Transferors relating to any of the Transferred Assets or otherwise related or necessary to the commercial exploitation of the Transferred Assets or the Business, and without limiting the foregoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation, with all electronic media to be delivered fully functioning; provided that if the Acquiror waives the closing condition that a Required Consent be obtained for any Transferred Contract, such Transferred Contract shall not be assigned to the Acquiror at the Closing, but shall instead be assigned at such time as the Required Consent is obtained;
(ii) deliver, or cause to be delivered, to the Acquiror the Transaction Documents duly executed by the Transferor Parties, as applicable;
(iii) deliver, or cause to be delivered, to the Acquiror a certificate, in respect form and substance reasonably satisfactory to the Acquiring Parties, signed by an authorized officer of each of the Purchased Shares Transferor Parties certifying the matters described in Section 6.1;
(iv) deliver, or cause to be purchased on delivered, to the Closing Date as Acquiror all Required Consents set forth on Schedule I attached hereto 3.9 and all Governmental Authorizations required to consummate the transactions contemplated by this Agreement;
(as it may v) deliver, or cause to be amended delivered, to the Acquiror evidence of the dissolution of the Transferors in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens5.17.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 3 contracts
Samples: Asset Contribution Agreement (SFX Entertainment, INC), Asset Contribution Agreement (SFX Entertainment, INC), Asset Contribution Agreement (SFX Entertainment, INC)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Assigning Parties shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of Assignee:
(i) A counterpart to each Seller, by wire transfer of immediately available funds Ancillary Agreement to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms hereinAssignor or any of its Affiliates is a party, shall, to the extent the Buyers have not received duly executed and delivered by a duly authorized representative of such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Person;
(ii) On The consent of the Closing DateLessor to this Agreement;
(iii) Unless such delivery is waived by the Assignee, subject the Restated Lease Agreement in form and content mutually acceptable to Section 1.3(d)(ivAssignee and the Lessor; and
(iv) belowsuch other instruments of Transfer as Assignee reasonably requests for the purpose of consummating the transactions contemplated by this Agreement.
(b) At the Closing, Sellers shall (1) Assignee will deliver or cause to be delivered to the Buyers Assignor the certificates, if any, representing the Purchased SharesNote and a counterpart to each other Ancillary Agreement to which Assignee or any of its Affiliates is a party, duly executed and validly endorsed or accompanied delivered by stock powers a duly and validly executed in blank, or (2) in lieu authorized representative of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensPerson.
(iiic) On the Modified Closing Date, (1) the Buyers shall take If any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure Transfer or assignment of any Closing Condition Assigned Right intended to be fulfilled transferred, assigned or assumed hereunder, as of the Termination Datecase may be, if on the day is not consummated at or prior to the Closing Date, Buyers provide written notice for any reason, then, insofar as reasonably possible, the Assignor shall thereafter hold such Assigned Right, as the case may be, for the sole use and benefit of Assignee. In addition, if any consent, waiver, confirmation, novation or approval is not obtained with respect to RiverNorth that they willany Transferred Contract, on then the Closing DateAssignor and Assignee shall cooperate to establish an agency type or other similar arrangement reasonably satisfactory to the Assignor and Assignee under which Assignee would obtain, purchase Company Shares from Sellers to the extent practicable, all rights, and assume the corresponding Liabilities thereunder for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on all periods following the Closing Date (including by means of subcontracting, sublicensing or subleasing arrangement) or under which the Assignor would enforce for the benefit of Assignee. The Assignor shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such amountAssigned Right in the ordinary course of business consistent with past practice and take such other actions as may be reasonably requested by Assignee, in order to place Assignee in a substantially similar position as if such Assigned Right had been Transferred as contemplated hereby and so that all the benefits and burdens relating to such Assigned Right, and any use, risk of loss, potential for gain, and dominion, control and command over such Assigned Right and all costs and expenses related thereto, shall inure from and after the Closing Date to Assignee.
(d) With respect to any Transferred Contract not transferred pursuant to this Section 2.7, (i) the Assignor shall promptly pay or cause to be paid to Assignee when received all moneys relating to the period on or after the Closing Date received by the Assignor under any such Transferred Contract and (ii) Assignee shall promptly pay, perform or discharge, or cause to be promptly paid, performed or discharged, when due any Liabilities arising thereunder after the Closing Date.
(g) If and when the approvals, notifications, consents or waivers, the “Notice Amount”))absence of which caused the deferral of transfer or assignment of any Assigned Right are obtained or made, and if and when any other legal impediments for purposes the transfer or assignment of this Section 1.3any Assigned Right have been removed, each amount on Schedule I hereto the Transfer or assignment of the applicable Assigned Right shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed effected in accordance with the terms of this Agreement based on such modified Schedule I. For and/or the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofapplicable Ancillary Agreements.
Appears in 3 contracts
Samples: Assignment of Lease and Festival Rights Agreement, Assignment of Lease and Festival Rights (Origo Acquisition Corp), Assignment of Lease and Festival Rights (Hightimes Holding Corp.)
Closing Deliveries. (a) At the Closing, Buyer shall deliver to Seller:
(i) On One Million of Buyer’s common stock, unregistered but entitled to piggy-back registration;
(ii) the documents described in Sections 5.3(c), (d) and (e); and
(iii) such other documents and instruments as counsel for Seller shall reasonably request to consummate the transactions described herein.
(b) At the Closing, Seller shall deliver to Buyer:
(i) stock certificate(s) evidencing the Stock duly endorsed in blank, or accompanied by stock powers duly executed in blank, for transfer to Buyer, together with any required deed or stock transfer stamps;
(ii) the documents described in Sections 5.2(c), (d) and (e);
(iii) an executed receipt for the Closing Date Cash Amount less the sum of (A) the Environmental Offset Amount, if any and (B) the Escrow Amount, if any;
(iv) a good standing certificate for the Company issued by the Secretary of State of its state of incorporation and of such other applicable jurisdictions where the Company is qualified to do business, dated as of a date within twenty (20) days of the Closing Date;
(v) a bring-down good standing certificate for the Company, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce the aggregate amount payable issued by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Secretary of State of its state of incorporation;
(iivi) On a certificate signed by the Closing Date, subject Seller of its non-foreign status pursuant to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)1.1445-2(b)(2) of the Purchased Shares Treasury Regulations;
(vii) such other documents and instruments as counsel for Buyer shall reasonably request to one or more accounts designated by consummate the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Lienstransactions described herein.
(iiiviii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) Fifty Million unregistered Datameg common shares issued to Buyer in respect consideration of Buyer’s assumption of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DateNote.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Blue Earth Solutions, Inc.), Stock Purchase Agreement (Datameg Corp), Stock Purchase Agreement (Datameg Corp)
Closing Deliveries. (i) On At the Closing, the Company will deliver to Purchaser:
(1) evidence in a form reasonably acceptable to Purchaser of book-entry notation in the name of Purchaser of an aggregate amount of shares of Voting Common Stock and Non-Voting Common Equivalent Stock, free and clear of all Liens (other than transfer restrictions imposed under this Agreement, the Articles Supplementary (as applicable) or applicable securities Laws), equal to (x) the Investment Amount (as defined below), divided by (y) the Per Share Issue Price (as defined below), rounded down to the nearest whole share (such number of shares, the “Total Shares Issued”), as follows: (A) a number of shares of Voting Common Stock (rounded to the nearest whole share) equal to (I) the Company’s good faith estimate (which estimate the Company shall provide to Purchaser not later than two (2) business days prior to the expected Closing Date) of the total number of shares of Voting Common Stock that will be issued and outstanding immediately following consummation of the Mergers, the Company Share Issuance and the issuance of shares of Voting Common Stock issued pursuant to any Other Investment Agreement, multiplied by (II) 9.9% (such number of shares, the “Voting Shares Issued”) minus the number of shares of Voting Common Stock owned by Purchaser as of the Closing Date (as notified by Purchaser to the Company two (2) days prior to the Closing Date), subject and (B) to Section 1.3(d)(ivthe extent that the Total Shares Issued exceeds the Voting Shares Issued, a number of shares of Non-Voting Common Equivalent Stock that is equal to the Total Shares Issued minus the Voting Shares Issued;
(2) below the Warrant to purchase a number of duly authorized, validly issued and non-assessable shares of Non-Voting Common Equivalent Stock in an amount equal to (x) the Total Shares Issued, multiplied by (y) 60% (as such number may be adjusted in accordance with Section 1.2(athe terms of the Warrant), duly executed by the Buyers Company, free and clear of all Liens (other than transfer restrictions imposed under this Agreement, the Warrant or applicable securities Laws);
(3) evidence, reasonably satisfactory to Purchaser, that the Articles Supplementary (A) has been filed with and accepted by the Maryland Department of State and (B) is in full force and effect as of the Closing;
(4) each of the certificates referenced in Sections 1.2(b)(ii)(4) and 1.2(b)(ii)(5);
(5) a counterpart signature page, duly executed by the Company, to the Registration Rights Agreement; and
(6) customary written legal opinions of outside counsel to the Company as to (x) the due authorization, valid issuance and non-assessability of the Securities and (y) the exemption from registration of the Securities, in each case, in connection with the Company Share Issuance.
(ii) If, prior to the Closing, the outstanding shares of Voting Common Stock shall deliver have been changed into a different number or cause kind of shares or securities, in any such case as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other like changes in the Company’s capitalization, or there shall be any extraordinary dividend or distribution denominated in shares of Voting Common Stock, an appropriate and proportionate adjustment shall be made to the (A) number of shares of Voting Common Stock to be delivered pursuant to Sellers Section 1.2(c)(i)(1)(A), (B) number of shares of Non-Voting Common Equivalent Stock to be delivered pursuant to Section 1.2(c)(i)(1)(B) and (C) Warrant to be delivered pursuant to Section 1.2(c)(i)(2), in each case, to give Purchaser the cash amounts set forth on Schedule I hereto in respect of each Sellersame economic effect as contemplated by this Agreement prior to such event.
(iii) At the Closing, Purchaser will deliver to the Company:
(1) for the Total Shares Issued, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated by the Company in writing at least two five (25) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or business days prior to the Closing Date, and which a per share purchase price of $12.30 (the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWACPer Share Issue Price”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 325,000,000 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Investment Amount”);
(2) the certificate referenced in Section 1.2(b)(iii)(3); and
(3) a counterpart signature page, for purposes of this Section 1.3duly executed by Xxxxxxxxx, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Registration Rights Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Investment Agreement (Warburg Pincus LLC), Investment Agreement (Banc of California, Inc.)
Closing Deliveries. (a) At the Closing, Buyer shall deliver the following to the Seller or its designees:
(i) On payment of the Closing Date, subject Cash Payment and the Aggregate Share Consideration to the Seller pursuant to Section 1.3(d)(iv1.1;
(ii) below and in accordance with Section 1.2(a), payment of the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior Closing Debt Amount to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery applicable holders of a release instruction to the Escrow Agent such Indebtedness in accordance with the terms of the Escrow Agreement applicable Pay-Off Letters;
(iii) payment of the Transaction Expenses to the applicable Persons and in accordance with the terms of the applicable Pay-Off Letters; and
(iv) a certificate executed by an officer of Buyer that the conditions set forth in Sections 7.3(a) and 7.3(b) have been satisfied.
(b) At the Closing, the Seller shall deliver, or cause to be deemed delivered, the following to satisfy this requirement Buyer:
(i) a certificate executed by an executive officer of the Company and the Seller that the conditions set forth in Sections 7.2(a), (b) and (c) have been satisfied;
(ii) written resignations, effective as of the Closing, in form and substance reasonably satisfactory to Buyer, of each officer and manager of the Company and each Company Subsidiary (other than any individual specified by Buyer in writing not less than two Business Days prior to the Closing), or, to the extent that any such resignations are not obtained, copies of the necessary corporate, limited liability company or partnership actions to effect the removal of each such officer and manager whose resignation was not so obtained;
(iii) a written consent of Seller amending that certain operating agreement of the Company, dated as of the Closing Date (as amended, modified and supplemented, the “Operating Agreement”), effective as of the Closing, in a form reasonably satisfactory to Buyer and the Seller;
(iv) evidence of the assignment and transfer of the Interests to Buyer by Seller, effective as of the Closing, in form and substance reasonably satisfactory to Buyer;
(v) copies of Pay-Off Letters with respect to the Escrow Funds deposited by Holdings Transaction Expenses and the Closing Debt Amount to be paid at the Closing pursuant to Sections 1.1(c) and (2d), respectively, of this Agreement;
(vi) a certificate (the amount “Closing Consideration Certificate”) executed by an executive officer of any dividends that the Company has declared with a record date on or prior to and the Seller setting forth the Transaction Expenses, the Closing DateIndebtedness and the Closing Cash of the Company and the Company Subsidiaries, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends each calculated as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(iivii) On termination agreements relating to any contract or agreement, except for the Closing Datecontracts or agreements set forth on Section 1.3 of the Company Disclosure Letter, subject to Section 1.3(d)(iv) belowbetween the Company or any Company Subsidiary, Sellers shall (1) deliver on the one hand, and any equity holder of the Company, any Company Subsidiary or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu any affiliate of any such certificates, Sellers may arrange for an appropriate electronic transfer equity holder (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of other than the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take or any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they willSubsidiary), on the Closing Dateother hand, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 which shall have been executed and delivered by each party thereto; and
(which notice shall specify viii) the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”certificate contemplated by Section 6.7(b)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Closing Deliveries. (ia) On At or prior to the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Sabes Parties shall deliver or cause to be delivered delivered, in form and substance reasonably acceptable to Sellers the cash amounts set forth on Schedule I hereto in respect Company and the Partnership:
(i) evidence that the Investors and the Sabes Trust contributed the GWG Shares to Sabes AV, free and clear of each Seller, by wire transfer of all liens (other than the Amended Indenture Pledge Agreement) such that immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood thatClosing, (1) with respect to Holdings, Sabes AV shall be the delivery of a release instruction to the Escrow Agent in accordance with the terms sole beneficial owner of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)GWG Shares;
(ii) On to the Partnership, a certificate or certificates, if any exist, representing 2,500,000 of the GWG Shares, duly endorsed in blank or accompanied by appropriate instruments of transfer duly endorsed in blank, or, if no such certificate or certificates exist, appropriate instruments of transfer duly endorsed in blank, in proper form to transfer ownership of such GWG Shares to the Partnership on the books and records of GWG, in each case free and clear of all Liens (other than the Amended Indenture Pledge Agreement);
(iii) to the Company, a certificate or certificates, if any exist, representing 1,452,155 of the GWG Shares, duly endorsed in blank or accompanied by appropriate instruments of transfer duly endorsed in blank, or, if no such certificate or certificates exist, appropriate instruments of transfer duly endorsed in blank, in proper form to transfer ownership of such GWG Shares to the Partnership on the books and records of GWG, in each case free and clear of all Liens (other than the Amended Indenture Pledge Agreement);
(iv) to each of the Company and the Partnership, a certificate of each of the Sabes Parties, dated the Closing Date, subject that each of the conditions set forth in Sections 7.2(a), (b), (e) and (g) have been satisfied;
(v) to each of the Company and the Partnership, evidence of the resignations (which resignations will include a full waiver and forfeit of any severance that may be payable by GWG or any of its subsidiaries in connection with such resignations or the transactions contemplated by this Agreement) of each of Xxx X. Xxxxx and Xxxxxx X. Sabes from any officer position held by such Person with GWG or any of its subsidiaries, except, in the case of (A) Xxx X. Xxxxx, as Chief Executive Officer of InsurTech Holdings, LLC and its direct subsidiaries and (B) Xxxxxx X. Sabes, as Chief Operating Officer of Life Epigenetics, Inc.;
(vi) to the Partnership and the Company, a statement by Sabes AV certifying as to the non-foreign status of Sabes AV that complies with Section 1.3(d)(iv1445 of the U.S. Internal Revenue Code;
(vii) belowto the Company, Sellers the A&R Company LLC Agreement, duly executed by Sabes AV; and
(viii) evidence that the Stock Options have been forfeited without exercise.
(b) At or prior to the Closing, the Company shall (1) deliver or cause to be delivered delivered, in form and substance reasonably acceptable to the Buyers Sabes Parties:
(i) evidence that the certificates, if any, representing applicable Company Interests have been issued to Sabes AV on the Purchased Sharesbooks and records of the Company;
(ii) the A&R Company LLC Agreement, duly and validly endorsed or accompanied executed by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) the existing members of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Company; and
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a certificate of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contraryCompany, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to dated the Closing Date, Buyers provide written notice that, as to RiverNorth that they willthe Company, on each of the conditions set forth in Section 7.3(a) and (b) have been satisfied.
(c) At or prior to the Closing, the Partnership shall deliver or cause to be delivered, in form and substance reasonably acceptable to the Sabes Parties, a certificate of the Partnership, dated the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify that, as to the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3Partnership, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms conditions set forth in Section 7.3(a) and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof(b) have been satisfied.
Appears in 2 contracts
Samples: Purchase and Contribution Agreement (Beneficient Capital Company, L.L.C.), Purchase and Contribution Agreement (Sabes Jon)
Closing Deliveries. (a) The purchase and sale of the Acquisition Shares (the “Closing”) shall take place at the offices of the Seller in Delray Beach, Florida, as soon as practicable, but no later than January 11, 2012, or at such other time and place as the Buyer and the Seller mutually agree upon, orally or in writing.
(b) As consideration for the Acquisition Shares, at Closing, the Buyer shall deliver to the Seller a promissory note in the principal amount of Two Hundred Thousand Dollars ($200,000), executed by the Buyer, which note shall be the form attached as Exhibit A hereto (the "Note") and shall be secured by a first priority lien on the assets of the Company, as evidenced by a Security Agreement between Buyer and the Seller in the form attached as Exhibit B hereto ("Security Agreement").
(c) The Buyer will issue 4.0 million new shares of the Buyer’s common stock to the Seller. Following the issuance, the total number of shares issued and outstanding of the Buyer will be 33.15 million.
(d) At Closing, the Buyer shall assume all the obligations of the Company under the PositiveID Animal Health Corporation 2010 Flexible Stock Plan (the “Company Stock Plan”), each outstanding option to purchase shares of the Company common stock under such plan (a “Company Stock Option”) which are set forth in Exhibit C hereto and the agreements evidencing the grants thereof. As soon as practicable after Closing, the Buyer shall deliver to the holders of Company Stock Options appropriate notice setting forth such holders’ right pursuant to the Company Stock Plan, and the agreements evidencing the grants of such Company Stock Options shall continue in effect on the same terms and conditions.
(e) The Buyer shall deliver to the Seller such other documents and instruments, in form and substance reasonably satisfactory to the Seller and its counsel, as shall be necessary or desirable in order to consummate the transactions contemplated hereby, each dated the date hereof.
(f) At the Closing, the Seller shall deliver to the Buyer: (i) On certificates representing the Closing DateAcquisition Shares, subject to Section 1.3(d)(iv) below together with stock powers, duly endorsed in blank in proper form for transfer; and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Datesuch other documents and instruments, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered in form and substance reasonably satisfactory to the Buyers Buyer and its counsel, as shall be necessary or desirable in order to consummate the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3transactions contemplated hereby, each amount on Schedule I hereto shall be reduced to dated the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 date hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Veriteq), Stock Purchase Agreement (POSITIVEID Corp)
Closing Deliveries. 4.1. The closing of the initial sale of the Tranche A Notes and the Warrants (the “Initial Tranche A Closing”) or any subsequent sale of Tranche A Notes and Warrants to shareholders of the Company up to their respective pro rata entitlement occurring not later than 30 calendar days after the Initial Tranche A Closing (each, a “Subsequent Tranche A Closing,” and each of the Initial Tranche A Closing and any Subsequent Tranche A Closing, a “Tranche A Closing”) shall occur on the date on which the conditions set out in Section 5.1 are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Tranche A Closing, but subject to the satisfaction or waiver of such conditions at such time). Each Investor who is a party to this Agreement on the date of this Agreement shall fund and close on its respective Tranche A Amount at the Initial Tranche A Closing, except to the extent such Investor has informed the Company in writing on or prior to the date hereof that the Investor is a mutual fund or a fund managed by a registered investment fund manager that requires alternative settlement procedures pursuant to applicable regulations and its and its custodian’s compliance policies and procedures (a “Deferred Funding Investor”), in which case such Deferred Funding Investor shall fund its Tranche A Amount not later than two (2) Business Days following the Initial Tranche A Closing, in each case subject to the satisfaction of the closing conditions set forth in Section 5 hereof as of the Initial Tranche A Closing. The Company shall have delivered prior to the date of this Agreement, or shall deliver on or after the date of this Agreement, a written notice from (or on behalf of) the Company to the Investors (the “Tranche A Closing Notice”) that the Company reasonably expects all conditions set out in Section 5.1 to be satisfied or waived on a date that is not less than two (2) Business Days from the date on which the related Tranche A Closing Notice is delivered to the Investors. At least one (1) Business Day prior to the closing date specified in the Tranche A Closing Notice (the “Tranche A Closing Date”), each Investor shall (i) On provide such information that is reasonably requested in the Tranche A Closing Notice in order for the Company to issue such Investor’s Tranche A Note, including, without limitation, the legal name of the person in whose name such Tranche A Note is to be issued and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable and (ii) deliver to the Company the Tranche A Amount set forth opposite such Investor’s name on the applicable signature page hereto by wire transfer in immediately available funds in escrow to a segregated account of the Company as specified by the Company in the Tranche A Closing Notice. If the applicable Tranche A Closing does not occur within five (5) Business Days following the Tranche A Closing Date specified in the applicable Tranche A Closing Notice, the Company shall promptly (but not later than one (1) Business Day thereafter) return to each Investor participating in such Tranche A Closing such Tranche A Amount in full to such Investor; provided that, unless this Subscription Agreement has been terminated pursuant to Section 13 hereof, such return of funds shall not terminate this Subscription Agreement or relieve any Investor of its obligations to purchase the Tranche A Note at the Tranche A Closing in the event the Company delivers a subsequent Tranche A Closing Notice in connection with this Section 4.1. At each Tranche A Closing, the Company will deliver to each Investor having delivered the relevant Tranche A Amount in full in accordance with this Section 4.1 a duly executed Tranche A Note in a principal amount equal to the Tranche A Amount set forth opposite such Investor’s name on the applicable signature page hereto or to any Joinder Agreement, together with a duly executed Warrant entitling such Investor to purchase that number of Warrant Shares set forth opposite such Investor’s name on such signature page hereto or to any Joinder Agreement. Upon request of any Investor as a condition precedent prior to funding on the Tranche A Closing Date, subject the Company shall deliver to Section 1.3(d)(ivthe Investor a copy (electronically in PDF format) below of the duly executed Tranche A Note in a principal amount equal to the Tranche A Amount set forth opposite such Investor’s name on the applicable signature page hereto, and a copy (electronically in PDF format) of the duly executed Warrant entitling such Investor to purchase that number of Warrant Shares set forth on such signature page hereto, each of the Tranche A Note and Warrant to be registered in the name of the Investor (or its nominee in accordance with Section 1.2(aits delivery instructions). If requested by an Investor, the Buyers Company shall deliver the originally signed Tranche A Note and Warrant to the Investor within one (1) Business Day of the Tranche A Closing.
4.2. The closing of the sale of the Tranche B Note (the “Tranche B Closing”, and, together with each Tranche A Closing, each a “Closing”) shall occur on the date on which the conditions set out in Section 5.2 are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Tranche B Closing, but subject to the satisfaction or waiver of such conditions at such time). The Company shall deliver, or cause the delivery of, a written notice from (or on behalf of) the Company to the Investors (the “Tranche B Closing Notice”) that the Company reasonably expects all conditions set out in Section 5.2 to be satisfied or waived on a date that is not less than five (5) Business Days from the date on which the Tranche B Closing Notice is delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at Investors. At least two (2) Business Days prior to the closing date specified in the Tranche B Closing Notice (the “Tranche B Closing Date”), each Investor shall (i) provide such information that is reasonably requested in the Tranche B Closing Notice in order for the Company to issue such Investor’s Tranche B Note, including, without limitation, the legal name of the person in whose name such Tranche B Note is to be issued and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable and (ii) deliver to the Company the Tranche B Amount set forth opposite such Investor’s name on the applicable signature page hereto by wire transfer in immediately available funds in escrow to a segregated account of the Company as specified by the Company in the Tranche B Closing Notice. If the Tranche B Closing does not occur within five (5) Business Days following the Tranche B Closing Date specified in the Tranche B Closing Notice, the Company shall promptly (it being understood that, but not later than one (1) Business Day thereafter) return each Investor’s Tranche B Amount in full to such Investor; provided that, unless this Subscription Agreement has been terminated pursuant to Section 13 hereof, such return of funds shall not terminate this Subscription Agreement or relieve any Investor of its obligations to purchase the Tranche B Note at the Tranche B Closing in the event the Company delivers a subsequent Tranche B Closing Notice in connection with respect to Holdingsthis Section 4.2. At the Tranche B Closing, the delivery of a release instruction Company will deliver to each Investor having delivered the Escrow Agent relevant Tranche B Amount in full in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect Section 4.2 a duly executed Tranche B Note in a principal amount equal to the Escrow Funds deposited by Holdings and (2) Tranche B Amount set forth opposite such Investor’s name on the amount applicable signature page hereto. Upon request of any dividends that the Company has declared with Investor as a record date on or condition precedent prior to funding on the Tranche B Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, Company shall deliver to the extent the Buyers have not received such dividends as Investor a copy (electronically in PDF format) of the Closing Date, reduce duly executed Tranche B Note in a principal amount equal to the aggregate amount payable by the Buyers to Sellers Tranche B Amount set forth opposite such Investor’s name on the Closing Date; providedapplicable signature page hereto, howeverthe Tranche B Note to be registered in the name of the Investor (or its nominee in accordance with its delivery instructions). If requested by an Investor, no such offset with respect the Company shall deliver the originally signed Tranche B Note to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall Investor within one (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Business Day of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensTranche A Closing.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Subscription Agreement (LeddarTech Holdings Inc.), Subscription Agreement (Prospector Capital Corp.)
Closing Deliveries. (i) On At Closing the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall parties will deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto following in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior form and substance reasonably satisfactory to the Closing Date other parties:
(it being understood that, (1a) with respect to Holdings, the delivery of a release instruction ACS2 will deliver to the Escrow Agent in accordance LLC stock certificates evidencing all Advanced Stock, duly endorsed by ACS2 or with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Datestock powers attached; provided, however, no that ACS2 will not be deemed in breach of this Agreement if it fails to obtain the same from its shareholders.
(b) Dynamic will deliver to the LLC stock certificates evidencing the outstanding capital stock of the Dynamic Subsidiaries duly endorsed by Dynamic or with stock powers attached.
(c) Advanced, Dynamic and the LLC will each execute and deliver Acceptance and Contribution Contracts, the form of which is attached hereto as Exhibit 6.14(c). The LLC will issue to Dynamic and ACS2 Contribution Consideration as contemplated under Section 1.3.
(d) ACS2 and Dynamic will execute and deliver the Operating Agreement regarding their ownership interests in the LLC, (in the form attached hereto as Exhibit 6.14(d).)
(e) Advanced will deliver the cancellation agreements referenced in Section 1.7; provided, however, that Advanced will not be deemed in breach of this Agreement if it fails to obtain the same from the individual holders of Advanced Warrants, Advanced Options and Advanced SARs.
(f) Each party will deliver to the other parties a certificate of an officer of delivering party, dated as of Closing, certifying that (i) each covenant and obligation of such offset with respect party hereunder has been complied with, (ii) each representation, warranty and covenant of such party hereunder is true and correct at the Closing as if made on and as of the Closing, and (iii) each representation, warranty and covenant of such party under the Merger Agreement is true and correct at the Closing as if made on and as of the Closing.
(g) Each party will deliver an opinion of its legal counsel, in form and substance reasonably acceptable to dividends the receiving party(ies).
(h) Each party shall apply to Company Shares not actually purchased deliver such customary certificates of its officers and such other customary closing documentation as may be reasonably requested by Buyers)the other parties, including without limitation:
(i) Certificates of Existence and/or "Good Standing" regarding the delivering party and its subsidiaries, certified by the appropriate Secretary of State and dated within ten (10) business days of Closing;
(ii) On Incumbency Certificates certifying the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) identity of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect officers of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) delivering party and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.its subsidiaries; and
(iii) On Charters or Operating Agreements, as certified by the Modified Closing Dateappropriate Secretary of State within ten (10) business days of Closing, (1) the Buyers shall take any such action and Bylaws, as would be required under Section 1.3(d)(i) in respect certified by an appropriate officer as of Closing, of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date delivering party and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Dateits subsidiaries.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares copies of all resolutions and/or unanimous written consent actions adopted by reason or on behalf of the failure board of any Closing Condition to be fulfilled directors and, if applicable, the stockholders of each party authorizing the transactions contemplated hereunder, certified by an officer as of the Termination Date, if on the day prior date of Closing in form reasonably acceptable to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofreceiving party.
Appears in 2 contracts
Samples: Capital Contribution Agreement (Dynamic Associates Inc), Capital Contribution Agreement (Dynamic Associates Inc)
Closing Deliveries. (a) At or prior to the Closing, the Seller shall deliver to the Buyer:
(i) On certificates evidencing the Purchased Shares to the extent that such Purchased Shares are in certificate form, duly endorsed in blank or with stock powers duly executed in proper form for transfer, and with any required stock transfer stamps affixed thereto (the “Share Certificates”), to be held by the Escrow Agent until receipt of GSE Approval;
(ii) evidence that the Seller has, at the Seller's expense and without cost or other adverse consequence to the Buyer, sent all notices, made all filings and obtained all Consents and Orders required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(iii) all Ancillary Agreements to which the Seller is a party, dated the Closing DateDate and duly executed by the Seller;
(iv) a certificate dated the Closing Date executed by the President or Chief Executive Officer or other authorized officer of the Seller certifying as to the satisfaction of each of the conditions set forth in Article VI (other than Section 6.3);
(v) a certificate dated the Closing Date executed by the Secretary of the Seller certifying as to the director, subject stockholder and other resolutions authorizing the Transaction Documents;
(vi) good standing certificates for the Seller, the Purchased Subsidiary and each of its Subsidiaries dated within five (5) days prior to the Closing Date from its jurisdiction of organization;
(vii) evidence of the release of all Encumbrances on the Purchased Shares, if any;
(viii) all documents obtained by the Seller pursuant to Section 1.3(d)(iv6.4;
(ix) below duly executed certificates, on behalf of the Purchased Subsidiary and each of its Subsidiaries, of non-United States real property interest status, reasonably acceptable to the Buyer, substantially in accordance with Section 1.2(athe form specified in Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)(2); and
(x) such other agreements, certificates, instruments and documents as the Buyer may reasonably request in order to fully consummate the transactions contemplated by and carry out the purposes and intent of this Agreement.
(b) At or prior to the Closing, the Buyers Buyer shall deliver or cause to the Seller:
(i) the Equity Consideration, which Equity Consideration is to be delivered held by the Escrow Agent until receipt by the Buyer of GSE Approval;
(ii) evidence that the Escrowed Cash Consideration has been placed in the Escrow Account (the Escrowed Cash Consideration, together with any interest thereon, the “Escrowed Cash” and, together with the Equity Consideration, the “Escrowed Amount”);
(iii) evidence that the Buyer has, at the Buyer's expense and without cost or other adverse consequence to Sellers the cash Seller, sent all notices, made all filings and obtained all Consents and Orders required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(iv) any amounts set forth on Schedule I hereto owed in respect of Transaction Related Expenses but unpaid by Buyer at the Closing in respect its obligations under Section 5.2(c)(ii) hereof;
(v) all Ancillary Agreements to which the Buyer is a party, dated the Closing Date and duly executed by the Buyer;
(vi) a certificate dated the Closing Date executed by the President or Chief Executive Officer or other authorized officer of the Buyer certifying as to the satisfaction of each Sellerof the conditions set forth in Article VII;
(vii) a certificate dated the Closing Date executed by the Secretary of the Buyer certifying as to the director, stockholder and other resolutions authorizing the Transaction Documents; and (viii) such other agreements, certificates, instruments and documents as the Seller may reasonably request in order to fully consummate the transactions contemplated by and carry out the purposes and intent of this Agreement.
(c) Upon receipt by the Buyer of GSE Approval:
(i) the Buyer shall instruct the Escrow Agent to deliver by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior the Escrowed Cash to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Seller's Account;
(ii) On the Closing Date, subject Buyer shall instruct the Escrow Agent to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered release the Equity Consideration to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Seller;
(iii) On the Modified Closing Date, (1) Seller shall instruct the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of Escrow Agent to release the Company Shares that Share Certificates to the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Buyer; and
(iv) Notwithstanding anything the Seller and the Buyer shall deliver to one another such other agreements, certificates, instruments and documents as the Seller or Buyer as applicable may reasonably request in this Agreement order to fully consummate the contrary, unless transactions contemplated by and carry out the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions intent of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (NMI Holdings, Inc.), Stock Purchase Agreement (NMI Holdings, Inc.)
Closing Deliveries. (i) On the Closing Date, subject the parties shall make, execute, acknowledge and deliver the legal documents and items required to Section 1.3(d)(ivbe executed or delivered in connection with the Closing (collectively the “Closing Documents”) below to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in accordance with Section 1.2(a), the Buyers shall deliver or cause connection therewith. The Closing Documents and other items to be delivered to Sellers at the cash amounts Closing are the following:
(a) Evidence of the DTC Registered REIT Stock, which shall bear the legend set forth on Schedule I hereto in respect the Articles of each SellerAmendment and Restatement of the Company, by wire transfer of as amended and restated and in effect immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date in substantially the form attached as Exhibit B (it being understood that, (1the “Articles”) with respect to Holdings, the delivery or a written statement of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends information that the Company has declared with will furnish a record date full statement about certain restrictions on or prior transferability to a stockholder on request and without charge, which restrictions shall be substantially the Closing Date, and which same as those set forth in the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Articles;
(iib) On Any other documents that are in the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver possession of a Contributor or cause to which can be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any obtained through such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated Contributor’s reasonable efforts which are reasonably requested by the BuyersCompany or the Operating Partnership and are reasonably necessary or desirable to assign, in transfer, convey, contribute and deliver the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased SharesContributed Interests directly, free and clear of any all Liens and all Liens.effectuate the transactions contemplated hereby;
(iiic) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of The Operating Partnership and the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date one hand and (2) Sellers the Helmsley Group Members on the other hand shall take any such action provide to the other a certified copy of all appropriate corporate resolutions or partnership, limited liability company or other actions, as would be required under Section 1.3(d)(ii) in respect of applicable, authorizing the execution, delivery and performance by the Operating Partnership and the Company Shares that Sellers are obligated to sell (if so requested by a Helmsley Group Member) and any Helmsley Group Member (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(d) The Operating Partnership and the Company on the Modified Closing Date.
(iv) Notwithstanding anything one hand and the Helmsley Group Members on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced except to the amount derived by multiplying extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date);
(e) The Contributors shall each provide the Operating Partnership with a certificate of non-foreign status that complies in form and in substance with Treasury Regulation Section 1.1445-2(b); and
(f) Any applicable books, records and Organizational Documents relating to each Contributed Helmsley Entity that are in the possession of each Contributed Helmsley Entity or the applicable Contributor or which can be obtained through such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofentities’ reasonable efforts.
Appears in 2 contracts
Samples: Contribution Agreement (Empire State Realty Trust, Inc.), Contribution Agreement (Empire State Realty Trust, Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Purchaser the cash amounts set forth on Schedule I hereto following:
(i) one or more stock certificates, free and clear of all restrictive and other legends (except as expressly provided in respect Section 4.1(b) hereof), evidencing such number of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior Shares equal to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery number of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received Units indicated below such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers Purchaser's name on the Closing Date; providedsignature page of this Agreement, however, no registered in the name of such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Purchaser;
(ii) On an Additional Investment Right, registered in the Closing Datename of such Purchaser, subject pursuant to Section 1.3(d)(ivwhich such Purchaser shall have the right to acquire such number of Underlying Shares indicated below such Purchaser's name on the signature page of this Agreement, on the terms set forth therein;
(iii) belowa legal opinion of Company Counsel, Sellers in the form of Exhibit B, executed by such counsel; and
(iv) duly executed Transfer Agent Instructions acknowledged by the Company's transfer agent.
(b) At the Closing, each Purchaser shall (1) deliver or cause to be delivered to the Buyers Company an amount equal to the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated Per Unit Purchase Price multiplied by the Buyersnumber of Units indicated below such Purchaser's name on the signature page of this Agreement, in United States dollars and in immediately available funds, by wire transfer to an account designated in writing to such Purchaser by the Company for such purpose.
(c) Notwithstanding anything to the contrary in this Section 2.2, in the case event that the Company cannot deliver all of the items set forth in Section 2.2(a) above, each Purchaser shall instead deliver the purchase price set forth in Section 2.2(b) to the Company Counsel, to be held by the Company Counsel in escrow on behalf of the Purchasers. Upon confirmation from the Purchaser Counsel of receipt by the Purchasers of all the items set forth in Section 2.2(a) above (1) and (2which may be in writing or via email), in respect the Company Counsel shall release the escrow funds to the Company. In the event all of the Purchased Shares to be purchased on the Closing Date as items set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.12.2(a) and sufficient to convey are not delivered to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to Purchasers within one Trading Day after the Closing Date, Buyers provide written notice the Purchasers shall have the right to RiverNorth demand that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify Counsel release the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced escrow funds to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, Purchasers. The Company Counsel hereby acknowledges and Closing shall proceed agrees to act as escrow agent in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv2.2(c). The Company Counsel (i) modifies shall be entitled to rely on any written or email communication received from the obligation Purchaser Counsel without any requirement to ascertain that the person(s) who have executed or conveyed such communication are authorized to do so or are the persons named therein or otherwise to pass upon any requirements of the Buyers to purchase the Purchased Shares, subject to the terms such communication that may be essential for its validity and conditions (ii) shall not be liable for any acts or omissions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofany kind any unless caused by its own gross negligence or willful misconduct.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Blue Rhino Corp), Securities Purchase Agreement (Blue Rhino Corp)
Closing Deliveries. At the Closing:
(ia) On Xxxxxx Europe and the Closing DateFamilies’ Agents shall deliver, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered (with certified copies delivered to Sellers each others), to Newco, Bidco and the cash amounts set forth on Schedule I hereto PE Fund:
(i) duly completed signed transfer forms (ordres de mouvement) in favor of Newco or Bidco, as the case may be, with respect to the Target Shares sold or contributed to Newco or Bidco, as the case may be, pursuant to this Agreement, which when all such transfer forms are taken together, effect the transfer to Newco or Bidco, as the case may be, of all the Target Shares to be delivered as at the Closing;
(ii) duly completed and signed tax transfer forms (formulaire Cerfa n°2759 DGI) in respect of each Seller, by wire transfer of immediately available funds all the Target Shares to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior be sold to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent Bidco in accordance with the terms of the Escrow this Agreement (three (3) original copies per Seller), it being expressly agreed that Bidco shall sign such forms and that a single tax transfer form shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings completed for sold shares originally divided between bare ownership (nue-propriété) and usufruct (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyersusufruit);
(iiiii) On the Closing Date, subject to Section 1.3(d)(ivup-to-date transfer register (registre des mouvements de titres) below, Sellers shall and the shareholders’ accounts (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)fiches individuelles d’actionnaires) of the Purchased Shares Target duly indicating the transfer to one Newco or more accounts designated by the BuyersBidco, in as the case may be, of each of (1) and (2), in respect of all the Purchased Target Shares to be purchased on transferred at the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased SharesClosing, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Encumbrances;
(iv) Notwithstanding anything in this Agreement the subscription forms corresponding to the contrary, unless subscriptions described in Sections 3.2 to 3.4 and 4.1 to 4.4;
(v) the Buyers would not be obligated to purchase the Purchased Shares by reason minutes of the failure of any Closing Condition to be fulfilled as extraordinary general meeting of the Termination Date, if on Target’s shareholders (actionnaires commanditaires) and the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation meeting of the Buyers to purchase the Purchased SharesTarget’s unlimited partners (associés commandités) which, inter alia, approve and authorize, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance Closing, the Conversion of the terms this Target, approve Newco and Bidco as new Shareholders of the Target and, as the case may be, approve the pledge to be granted to the Banks and its beneficiary; Table of Contents
(vi) a copy of the powers of attorney, in agreed form, for each Seller that shall not attend the Closing;
(vii) reliance letters for the VDD Report to Newco, Bidco and the Banks in satisfactory form for them;
(viii) a copy of the Xxxxxx Gras Savoye Ré Agreement duly signed, according to Clause 10.3; and
(ix) a copy of the duly completed signed transfer forms in favor of Target and the corresponding duly completed and signed tax transfer forms for the Xxxxx Minority Shares and the Gras Minority Shares, according to Section 9.4.
(b) Bidco and the PE Fund shall deliver to Xxxxxx Europe and the Families’ Agents evidence of the wire transfers relating to the full payment of the Purchase Price in accordance with Section 6.4 hereof8.2.
Appears in 2 contracts
Samples: Investment and Share Purchase Agreement, Investment and Share Purchase Agreement (Willis Group Holdings PLC)
Closing Deliveries. (i) On At the Exchange Closing Dateor any Exchange Subsequent Closing, subject as the case may be, Holdings shall deliver to Section 1.3(d)(ivPurchaser (A) below and certificates evidencing such number of shares of Common Stock (as calculated in accordance with Section 1.2(a2(d) above) (the "Exchange Shares"), pursuant to the Buyers Exchange Notice to which the Exchange Closing or such Exchange Subsequent Closing relates, in definitive form and registered in the name of Purchaser and/or such assigns permitted pursuant to the Note and in such denominations as Purchaser shall deliver reasonably request, (B) proof of the payment prior to such Closing Date of applicable documentary stamp taxes and any other fees or costs imposed on the issuance of the Exchange Shares by any Governmental Agency having jurisdiction over such issuance, and (C) one or more of the Notes BSRDs, covering such amounts as necessary to cause to the registration of the Exchange Shares with the BSP and any other document, certificate or report that may be delivered to Sellers required by the cash amounts set forth on Schedule I hereto BSP in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);registration.
(ii) On At the Exchange Closing Dateor any Exchange Subsequent Closing, subject as the case may be, the Company shall deliver to Section 1.3(d)(ivPurchaser (A) below, Sellers shall an amount in cash equal to any accrued and unpaid interest (1) deliver or cause to be delivered other than accrued and unpaid interest added to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Invested Principal Amount pursuant Section 2.01 of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1Notes) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey Notes exchanged into Common Stock pursuant to the Buyers goodExchange Notice delivered to Holdings under Section 2(d) above and (B) a new Note representing the Current Invested Principal Amount, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensif any.
(iii) On At the Modified Exchange Closing Dateor any Exchange Subsequent Closing, (1) as the Buyers case may be, Purchaser shall take any deliver to Holdings such action as would be required under Section 1.3(d)(i) in respect number of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement Notes owned by Purchaser with an aggregate principal amount equal to the contraryConversion Principal Amount as set forth in the Exchange Notice to which the Exchange Closing or such Exchange Subsequent Closing relates, unless the Buyers would not be obligated together with an instrument of transfer reasonably satisfactory to purchase the Purchased Shares Holdings duly executed by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (Purchaser. Upon such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750delivery, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to Section 2(d)(ii) above, Holdings shall receive the terms relevant Notes and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking all the rights pertaining to compel specific performance of a holder thereof other than the terms this Agreement in accordance with Section 6.4 hereofExchange Rights.
Appears in 2 contracts
Samples: Purchase Agreement (Psi Technologies Holdings Inc), Exchange Agreement (Merrill Lynch & Co Inc)
Closing Deliveries. (ia) On the Closing DateAt Closing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Parent shall pay or deliver, the Buyers shall deliver or cause to be delivered to Sellers paid or delivered, as the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shallcase may be, to the extent Transferor Parties:
(i) an amount equal to $7,487,495.56, which equals the Buyers have not received such dividends as of Cash Payment minus the Closing Date, reduce Payoff Amounts and minus the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Adjustment Amount;
(ii) On original stock certificates evidencing the Closing DateStock Consideration, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered issued to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date Transferor Parties as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.C; and
(iii) On Transaction Documents duly executed by the Modified Closing DateAcquiring Parties, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Dateapplicable.
(ivb) Notwithstanding anything in this Agreement At the Closing, the Transferor Parties shall deliver to Acquiror:
(i) The Transferred Assets, including without limitation, copies of all books, records, files, and documents of each Transferor relating to any of the Transferred Assets or otherwise related or necessary to the contrarycommercial exploitation of the Transferred Assets or the Business, unless and without limiting the Buyers would foregoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation, with all electronic media to be delivered fully functioning; provided that if Acquiror waives the closing condition that a Required Consent be obtained for any Transferred Contract, such Transferred Contract shall not be obligated assigned to purchase Acquiror at the Purchased Shares Closing, but shall instead be assigned at such time as the Required Consent is obtained;
(ii) Transaction Documents duly executed by reason of the failure of any Closing Condition Transferor Parties, as applicable; and
(iii) All Required Consents set forth on Schedule 8.2(b)(iii) and all Governmental Authorizations required to consummate the transactions contemplated by this Agreement.
(c) At Closing, Parent shall pay or deliver, or cause to be fulfilled paid or delivered, as of the Termination Datecase may be, if on to Treehouse International, LLC the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed Payoff Amounts in accordance with terms Schedule B.
(d) At Closing, Parent shall pay or deliver, or cause to be paid or delivered, as the case may be, to Recovery Racing LLC dba Ferrari-Maserati of this Agreement based Fort Lauderdale the amount set forth on such modified Schedule I. For A in connection with the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers consideration to purchase the Purchased Shares, subject be paid to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofXxxxxx as described therein.
Appears in 2 contracts
Samples: Asset Contribution Agreement (SFX Entertainment, INC), Asset Contribution Agreement (SFX Entertainment, INC)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver deliver, or cause to be delivered delivered, to Sellers each Investor the cash amounts following:
(i) one or more stock certificates (or copies thereof provided by the Transfer Agent), free and clear of all restrictive and other legends (except as expressly provided in Section 4.1(b) hereof), evidencing such number of the Common Shares set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to opposite such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers Investor’s name on the Closing Date; providedSchedule of Investors attached hereto as Exhibit A, however, no registered in the name of such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Investor;
(ii) On a legal opinion of Company Counsel, in the form of Exhibit C, executed by such counsel;
(iii) duly executed Transfer Agent Instructions acknowledged by the Transfer Agent; and
(iv) evidence of filing with each applicable Trading Market of an additional shares listing application covering all of the Common Shares (and, if applicable, evidence of conditional listing approval).
(b) The Agent shall notify the Investors of the Closing DateDate in writing as soon as practicable. No later than the seventh calendar day preceding the Closing Date as so notified by the Agent, subject to Section 1.3(d)(iv) beloweach Investor shall deliver, Sellers shall (1) deliver or cause to be delivered delivered, to the Buyers Escrow Agent the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) aggregate Purchase Price of the Purchased number of the Common Shares set forth opposite such Investor’s name on the Schedule of Investors attached hereto as Exhibit A, in United States dollars and in immediately available funds, by wire transfer to one or more accounts an account of the Escrow Agent designated in writing to the Investors by the BuyersAgent for such purpose or by certified check or bank draft payable to “Xxxxxxx, Xxxxx & Xxxxxxxxx LLP, in trust”. Each of the case Investors hereby acknowledges and agrees that the Escrow Agent shall pay such Purchase Price to the Company at the Closing, solely upon the direction of the Agent and without any further instructions, direction or confirmation of such Investor. Furthermore, each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of Investors hereby waives any and all Liens.
(iii) On claims that he, she or it has, or may have in the Modified Closing Datefuture, (1) against the Buyers shall take any Escrow Agent as a result of, or arising from or in connection with, the Escrow Agent making such action as would be required under Section 1.3(d)(i) in respect payment to the Company upon the direction of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date Agent, and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect each of the Company Shares that Sellers are obligated to sell on Investors hereby releases the Modified Closing DateEscrow Agent from any and all such claims.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (OccuLogix, Inc.), Securities Purchase Agreement (OccuLogix, Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Purchaser, and the cash amounts obligations of the Purchasers to close the purchase and sale of the Securities shall be subject to the fulfillment or satisfaction of, the following:
(i) a certificate evidencing the number of Shares and the number of Warrants to purchase Warrant Shares as set forth opposite such Purchaser’s name on Schedule I of Purchasers attached hereto in respect of (the Shares and Warrants referred to collectively herein as the “Units”) for the Per Unit Purchase Price. For each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days Shares purchased by a Purchaser, such Purchaser shall receive a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire one (1) Warrant Share at an exercise price of $2.60, which represents 130% of the closing bid price per share of Common Stock on the date immediately preceding the date of this Agreement as reported on the Nasdaq Over The Counter Bulletin Board System in the form attached hereto as Exhibit A.
(ii) the legal opinions of Xxxxxxxx & Wedge, special Nevada counsel to the Company, and Xxxxx & XxXxxxxx LLP, special counsel to the Company, each in agreed form, addressed to the Purchasers.
(iii) the Registration Rights Agreement duly executed by the Company.
(iv) the representations and warranties made by the Company in Article III shall be true and correct in all material respects, all covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Company prior to the Closing Date shall have been performed or complied with (it being understood thator waived by the Purchasers), and the Company shall have obtained any approvals, consents and qualifications necessary to perform its obligations hereunder.
(1v) with respect the Company shall have delivered to Holdingseach of the Purchasers at the Closing a certificate signed on its behalf by its Chief Executive Officer certifying that the conditions specified in Section 2.2 hereof have been fulfilled.
(vi) at the Closing, the delivery Company shall have delivered to the Purchasers copies of each of the following, in each case certified by the Secretary of the Corporation to be in full force and effect on the date of the Closing:
(a) the articles of incorporation of the Company as of the Closing (which shall be the Articles) certified by the Secretary of State of the State of Nevada as of a release instruction date not more than thirty (30) days prior to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement Closing;
(b) a good standing certificate with respect to the Escrow Funds deposited Company certified by Holdings and the Secretary of State of Nevada as of a date not more than thirty (230) days prior to the Closing;
(c) the amount by-laws of any dividends that the Company; and
(d) resolutions of the Board, and, as necessary, the shareholders of the Company, authorizing the execution, delivery and performance of the Transaction Documents, and the transactions contemplated hereby and thereby, including the issuance and sale of the shares of Common Stock and the reservation of shares of Common Stock for issuance upon exercise of the Warrants.
(vii) At the Closing, the Company has declared shall pay (or reimburse the Purchasers for) the fees and expenses of the Purchasers specified in Section 5.1 as payable by the Company.
(viii) As of the Closing, the purchase of the Shares by each of the Purchasers shall be legally permitted by all laws and regulations to which each of the Purchasers and the Company is subject.
(ix) As of the Closing, all authorizations, approvals or permits of, or filings with a record date on any governmental authority, including state securities or “Blue Sky” offices, that are required by law in connection with the lawful sale and issuance of the Securities, including the exercise of the Warrants for Warrant Shares, shall have been duly obtained by the Company, and shall be effective as of the Closing.
(x) All corporate and other proceedings in connection with the transactions contemplated by the Transaction Documents, and all documents and instruments incident to such transactions, shall be satisfactory in form and substance to each of the Purchasers, and each of the Purchasers shall have received at or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers all such documents as each such Purchaser shall have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);requested.
(iib) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers each Purchaser shall (1) deliver or cause to be delivered to the Buyers Company, and the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) obligations of the Purchased Shares Company to one or more accounts designated by close the Buyers, in the case of each of (1) purchase and (2), in respect sale of the Purchased Shares securities shall be subject to be purchased on the Closing Date fulfillment or satisfaction of, the following:
(i) the product of the Per Unit Purchase Price and the number of Units as set forth opposite such Purchaser’s name on Schedule I of Purchasers attached hereto (as it may be amended hereto, in accordance with Section 1.1) United States dollars and sufficient in immediately available funds, by wire transfer to convey to an account designated in writing by the Buyers good, valid and marketable title in and to Company for such Purchased Shares, free and clear of any and all Liens.purpose; and
(iii) On the Modified Closing Date, (1ii) the Buyers shall take any Registration Rights Agreement duly executed by such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DatePurchaser.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Nova Biosource Fuels, Inc.), Securities Purchase Agreement (Nova Biosource Fuels, Inc.)
Closing Deliveries. At the Closing, the Parties shall take the following actions:
(a) Sellers shall deliver to Buyer:
(i) On a receipt evidencing receipt by Sellers of payment and delivery by Buyer of the Closing Date, subject to Section 1.3(d)(ivPurchase Price;
(ii) below and in accordance with Section 1.2(a), certificates representing the Buyers shall deliver or cause Acquired Company Shares to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of transferred by each Seller, duly executed in blank or accompanied by stock powers duly executed in blank, in proper form for transfer and accompanied by all requisite stock transfer tax stamps;
(iii) copies (or other evidence) of all valid approvals or authorizations of, filings or registrations with, or notifications to, all Governmental Entities required to be obtained, filed or made by Sellers in satisfaction of Section 6.1(a);
(iv) a duly executed certificate of non-foreign status in the form and manner that complies with Section 1445 of the Code;
(v) the officer’s certificates contemplated in Section 6.2(a); and
(vi) all such additional instruments, documents and certificates provided for by this Agreement or as may be reasonably requested by Buyer in connection with the closing of the transactions contemplated by this Agreement and the Ancillary Documents.
(b) Buyer shall deliver to Sellers:
(i) cash in an amount equal to the Purchase Price, which shall be made by wire transfer of immediately available funds to such the account or accounts as RiverNorth Capital on behalf of designated by Sellers has specified in writing at least two (2) Business Days prior pursuant to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Section 2.6;
(ii) On the Closing Datecopies (or other evidence) of all valid consents, subject to Section 1.3(d)(iv) belowapprovals or authorizations of, Sellers shall (1) deliver filings or cause registrations with, or notifications to, all Governmental Entities required to be delivered to the Buyers the certificatesobtained, if any, representing the Purchased Shares, duly and validly endorsed filed or accompanied made by stock powers duly and validly executed Buyer in blank, or (2) in lieu satisfaction of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1Section 6.1(a) and (2Section 6.1(c), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under officer’s certificate contemplated in Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.6.3(a); and
(iv) Notwithstanding anything in all such additional instruments, documents and certificates provided for by this Agreement to or as may be reasonably requested by Sellers in connection with the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason closing of the failure of any Closing Condition to be fulfilled as transactions contemplated by this Agreement and the Ancillary Documents.
(c) Each of the Termination DateParties shall, if on or shall cause its applicable Affiliates to, execute and deliver a counterpart of each of the day prior following agreements to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 which it or any such Affiliate is a party (which notice shall specify the amount Buyers will purchase on the Closing Date (such amountcollectively, the “Notice AmountAncillary Documents”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to ):
(i) the amount derived by multiplying each such number by License Agreement; and
(ii) the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Transition Services Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Protective Life Corp), Stock Purchase Agreement (Protective Life Insurance Co)
Closing Deliveries. At or prior to each Closing, with respect to each Series B Member that requests the Exchange contemplated for such Closing:
(i) On to the extent that such Series B Member’s Series B Membership Interests are certificated, such Series B Member shall deliver to HII one or more certificates representing the number of Series B Membership Interests specified in the applicable Exchange Request (or an affidavit of loss in lieu thereof in customary form, but without any requirement to post a bond or furnish any other security), accompanied by security transfer powers, in form reasonably satisfactory to the corporate secretary of HII (the “Secretary”), duly executed in blank by such Series B Member or such Series B Member’s duly authorized attorney, to be Exchanged for Class A Shares based on the Exchange Rate in effect at the applicable Closing;
(ii) to the extent such Series B Member’s Class B Shares are certificated, such Series B Member shall deliver to HII one or more certificates representing a number of Class B Shares as determined pursuant to the Share Exchange Rate in effect at the applicable Closing Date(or an affidavit of loss in lieu thereof in customary form, subject but without any requirement to post a bond or furnish any other security), accompanied by security transfer powers, in form reasonably satisfactory to the Secretary, duly executed in blank by such Series B Member or such Series B Member’s duly authorized attorney;
(iii) such Series B Member shall represent in writing, and at HII’s request deliver confirmatory evidence reasonably satisfactory to HII, that no Liens exist on the Series B Membership Interests and Class B Shares delivered pursuant to Sections 2.01(d)(i) and 2.01(d)(ii) (other than transfer restrictions imposed by or under applicable securities laws, the LLC Agreement and this Agreement), or that such Liens have been released;
(iv) if such Series B Member delivers to HII, pursuant to Section 1.3(d)(iv2.01(d)(i) below and in accordance with Section 1.2(aor 2.01(d)(ii), a certificate representing a number of Series B Membership Interests or Class B Shares that is greater than the Buyers number of Series B Membership Interests or Class B Shares specified in the applicable Exchange Request, HII will deliver (or cause the Company to deliver) to such Series B Member certificates representing the excess Series B Membership Interests or Class B Shares, as applicable; and
(v) HII shall deliver or cause to be delivered to Sellers such Series B Member at the cash amounts set forth on Schedule I hereto in respect then-acting registrar and transfer agent of each Sellerthe Class A Shares or, by wire if there is no then-acting registrar and transfer agent of immediately available funds to such accounts as RiverNorth Capital on behalf the Class A Shares, at the principal executive offices of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to HoldingsHII, the delivery number of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends Class A Shares that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are such Series B Member is entitled to receive under for Series B Membership Interests (together with the terms herein, shall, to the extent the Buyers have not received such dividends as corresponding number of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Class B Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensExchange.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Exchange Agreement (Health Insurance Innovations, Inc.), Exchange Agreement (Health Insurance Innovations, Inc.)
Closing Deliveries. In connection with the Closing, the Parties shall take the following actions (as of, or promptly following the deliver of funds described in (i) On the Closing Date, subject to Section 1.3(d)(ivbelow)):
(i) below and in accordance with Section 1.2(a), the Buyers Purchaser shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller$4,527,211.03, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two an account jointly designated by Sellers;
(2ii) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction Purchaser shall deliver to the Escrow Agent the amount of $800,000 (the "Escrow Amount") to be held and disbursed in accordance with the terms Escrow Agreement;
(iii) Sellers shall deliver to Purchaser stock certificates representing all of the Escrow Agreement outstanding shares of the Company Stock, free and clear of all Liens, together with such warranty bills of sale, assignments, stock powers and other documents or instruments as shall be deemed reasonably necessary to satisfy this requirement with respect convey to Purchaser full right, title and interest in and to such shares;
(iv) the Company shall deliver to Purchaser evidence that all Liens in any of the Company's businesses, assets, properties and operations have been released;
(v) each Seller shall certify to Purchaser that all governmental or third party filings, licenses, consents, authorizations, waivers and approvals that are required to be made or obtained for the transfer to Purchaser of the Company Stock have been duly made and obtained without conditions or requirements that are materially adverse to Purchaser;
(vi) Purchaser shall deliver to Sellers a certificate signed by an officer of Purchaser to the Escrow Funds deposited effect that all governmental or third party filings, licenses, consents, authorizations, waivers and approvals that are required to be made or obtained by Holdings Purchaser for the transfer to Purchaser of the Company Stock have been duly made and obtained without conditions or requirements that are materially adverse to Sellers;
(2vii) Dykexx Xxxsxxx XXXC, counsel to Sellers and the Company, shall deliver to Purchaser an opinion in form and substance reasonably satisfactory to Purchaser;
(viii) the amount Company shall deliver to Purchaser a good standing certificate of any dividends that the Company has declared with issued by the Secretary of State of the State of Michigan, dated as of a record date on or within ten (10) days prior to the Closing Date;
(ix) the Company shall deliver to Purchaser a copy of its Articles of Incorporation, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as effect as of the Closing Datedate hereof, reduce the aggregate amount payable certified by the Buyers to Sellers on Secretary of State of Michigan and copy of its bylaws as an effect as of the Closing Datedate hereof, as certified by an officer of the Company; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);and
(iix) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly each Seller and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) each of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect other principals of the Company Shares that the Buyers are obligated designated by Purchaser shall execute and deliver to purchase on the Modified Closing Date Purchaser a non-compete agreement in form and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated substance satisfactory to sell on the Modified Closing DatePurchaser.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Transwestern Holdings Lp), Stock Purchase Agreement (Transwestern Publishing Co LLC)
Closing Deliveries. (i) On At the Closing DateClosing, subject to Section 1.3(d)(ivSeller will deposit with Escrow Agent the following documents executed and acknowledged, as applicable:
(1) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two Deed;
(2) Business Days prior the Xxxx of Sale;
(3) the Assignment of Resident Agreements;
(4) the Assignment of Rights;
(5) the Assignment of Trade Names;
(6) an owner’s affidavit in the form reasonably agreed to by the parties;
(7) a non-foreign affidavit in the form attached hereto as Exhibit 16(b)(i)(7);
(8) a transition services agreement which will be negotiated by the parties in good faith during the Due Diligence Period and will allow New Operator to transition operations of the Facility in an orderly manner after Closing Date (it being understood that, the “Transition Services Agreement”);
(19) with respect to Holdings, the delivery Holdback Escrow Agreement;
(10) a counterpart original of a release instruction Washington State Real Estate Excise Tax Affidavit; and
(11) such other items as may be reasonably requested in order for Seller to the Escrow Agent in accordance comply with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Agreement.
(ii) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers Purchaser shall deposit with Escrow Agent the following:
(1) deliver or cause to be delivered to the Buyers Purchase Price less the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or Deposit;
(2) in lieu executed counterparts of any such certificatesthe Assignment of Resident Agreements, Sellers may arrange for an appropriate electronic transfer the Assignment of Rights, the Assignment of Trade Names, the Transition Services Agreement and the Holdback Escrow Agreement;
(including through Deposit and Withdrawal at Custodian 3) one-half (“DWAC”)1/2) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of basic escrow fee;
(14) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Lienstransfer, excise, sales tax, stamp and similar fees and taxes;
(5) all escrow fees and charges allocable to Purchaser’s financing for this transaction and its share of prorated items;
(6) an executed counterpart original of a Washington State Real Estate Excise Tax Affidavit; and
(7) such other items as may be reasonably requested in order for Purchaser to comply with the terms of this Agreement.
(iii) On Seller shall pay the Modified Closing Date, recording fee on the Deed; the cost of a standard owner’s title insurance policy; one-half (11/2) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated escrow fee, other than any portion thereof allocable to purchase on the Modified Closing Date Purchaser’s financing for this transaction; and (2) Sellers its share of prorated items. Each party shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto pay its own attorneys’ fees. Purchaser shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750responsible for any premiums, costs or charges for extended title coverage, endorsements, lender’s coverage, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofall other similar amounts.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (CNL Healthcare Properties, Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) Seller will deliver or cause to be delivered to the Buyers Purchaser:
(i) written resolutions or copies of the certificates, if any, minutes of the meeting of the Board of Directors of each of the Company and the Seller approving the transfer of the Shares;
(ii) a certificate or certificates representing the Purchased Shares, duly and validly endorsed or accompanied by a stock powers power duly endorsed in blank and validly executed with all required stock transfer tax stamps affixed, together with such other documents and instruments necessary to vest in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) the Purchaser all of the Purchased Shares to one or more accounts designated by the BuyersSeller’s right, in the case of each of (1) title and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title interest in and to such Purchased the Shares, free and clear of any and all Liens.;
(iii) On a short form acceptance letter signed by the Modified Company approving the transfer of its shares;
(iv) a certificate, dated as of the Closing Date, executed by the Seller confirming the satisfaction of the conditions specified in Section 6.2(a) and Section 6.2(b);
(1v) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Ancillary Agreements to which the Seller or its Affiliates are a party, duly executed by the Seller or the applicable Affiliate of the Company Shares that Seller; and
(vi) resignations effective as of the Buyers are obligated to purchase on the Modified Closing Date of each director and officer of each Acquired Company as the Purchaser may have requested in writing within ten (210) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of Business Days prior to the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(ivb) Notwithstanding anything in this Agreement At the Closing, the Purchaser will deliver or cause to be delivered to the contrarySeller:
(i) the Closing Date Payment by wire transfer of immediately available funds in US Dollars to the account or accounts specified by the Seller;
(ii) a certificate, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled dated as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number executed by the quotient resulting from Purchaser confirming the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation satisfaction of the Buyers conditions specified in Section 6.3(a) and Section 6.3(b); and
(iii) the Ancillary Agreements to purchase which the Purchased Shares, subject to Purchaser or its Affiliates are a party executed by the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance Purchaser or the applicable Affiliate of the terms this Agreement in accordance with Section 6.4 hereofPurchaser.
Appears in 2 contracts
Samples: Share Purchase Agreement (Ariad Pharmaceuticals Inc), Share Purchase Agreement (Ariad Pharmaceuticals Inc)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Investor that is purchasing Company Shares the cash amounts following (the “Company Deliverables”):
(i) a stock certificate representing such number of Company Shares equal to the portion of such Investor’s Investment Amount invested at the Closing divided by the Per Share Purchase Price, registered in the name of such Investor;
(ii) a certificate evidencing the formation and good standing of the Company and Old HW, issued by the Secretary of State of the State of Delaware, each as of a date within ten (10) days of the Closing Date;
(iii) a certified copy of (i) the Certificate of Incorporation, as amended, of the Company (the “Certificate of Incorporation”) and (ii) the Certificate of Incorporation, as amended, of Old HW, each as certified by the Secretary of State of the State of Delaware, as of a date within ten (10) days of the Closing Date;
(iv) a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3.1(c) as adopted by the Company’s board of directors in a form reasonably acceptable to such Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Closing;
(v) the Investors’ Rights Agreement and any other Transaction Documents which the Company is required to execute hereunder, duly executed by the Company;
(vi) the legal opinion of Company Counsel in substantially the form previously provided to the Investors, addressed to the Investor;
(vii) the certificates set forth on Schedule I hereto in respect Section 5.1 of this Agreement; and
(viii) such other documents relating to the transactions contemplated by this Agreement as such Investor or its counsel may reasonably request.
(b) At the Closing, each SellerInvestor shall deliver or cause to be delivered to the Company the following (the “Investor Deliverables”):
(i) the portion of its Investment Amount invested at the Closing, in United States dollars, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received for such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);purpose attached hereto at Exhibit C.
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased SharesInvestors’ Rights Agreement, duly and validly endorsed or accompanied executed by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensInvestor.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (HealthWarehouse.com, Inc.), Securities Purchase Agreement (New Atlantic Venture Fund Iii L P)
Closing Deliveries. (a) Except as otherwise indicated below, at the Closing, Seller shall deliver the following to Buyer:
(i) On each of the Closing DateAncillary Agreements to which Seller or any of its Affiliates is a party, subject validly executed by a duly authorized officer of Seller;
(ii) a receipt acknowledging receipt of the Purchase Price in satisfaction of Buyer’s obligations pursuant to Section 1.3(d)(iv2.3.1, validly executed by a duly authorized representative of Seller or the applicable Seller Affiliate;
(iii) below and in accordance with Section 1.2(a)the Purchased Assets; provided, the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two that (2) Business Days prior to the Closing Date (it being understood that, (1A) with respect to Holdingstangible Purchased Assets, delivery shall, unless the Parties otherwise mutually agree, be to the locations and on the timeframes set forth in Schedule 2.4.2(a)(iii) and (B) Seller may retain copies of the Regulatory Documentation, the delivery of a release instruction Product Records and the Shionogi-owned or Controlled Records included within the Purchased Assets and the Purchased Contracts (and, for clarity, prior to the Escrow Agent in accordance with the terms of the Escrow Agreement delivering or making available any files, documents, instruments, papers, books and records containing Product Records or constituting Regulatory Documentation to Buyer, Seller shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms hereinredact from such files, shalldocuments, instruments, papers, books and records any information to the extent that it does not relate to the Buyers have not received such dividends Product Business);
(iv) the consents, permits, authorizations, notices and other items set forth in Exhibit G, in form and substance reasonably satisfactory to Buyer; and
(v) a certificate, dated as of the Closing Date, reduce validly executed by a duly authorized officer of Seller, certifying that all of the aggregate amount payable conditions set forth in Section 6.2.1 and Section 6.2.2 have been satisfied.
(b) At the Closing, Buyer shall deliver the following to Seller:
(i) each of the Ancillary Agreements to which Buyer is a party, validly executed by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)a duly authorized officer of Buyer;
(ii) On the Purchase Price in accordance with Section 2.3.1 (along with a U.S. Federal Reserve reference number evidencing execution of such payment); and
(iii) a certificate, dated as of the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blankby a duly authorized officer of Buyer, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) certifying that all of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as conditions set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) 6.3.1 and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensSection 6.3.2 have been satisfied.
(iiic) On Buyer shall conduct a quality and completeness review of the Modified Closing DateRegulatory Documentation transferred to it pursuant to Section 2.4.2(a)(iii) promptly following such transfer and, within 45 days after such transfer, shall notify Seller in writing of any problems or issues experienced by Buyer regarding the completeness, navigation or readability of such transferred Regulatory Documentation that Buyer reasonably and in good faith believes are related to the transfer of such Regulatory Documentation (1) the Buyers and not, for example, related to Buyer system capabilities or compatibility). Seller shall take use its commercially reasonable efforts to assist Buyer in remedying any such action problems or issues (if any) as would be required under Section 1.3(d)(i) in respect soon as reasonably practicable following Seller’s receipt of Buyer’s notice of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Datesame.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.), Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.)
Closing Deliveries. (i) On At the Closing, the Company shall deliver to Buyer the following:
(A) a certificate (the “Company Secretary Certificate”), dated the Closing Date, subject in form and substance reasonably satisfactory to Section 1.3(d)(ivBuyer, signed by the secretary of the Company, attaching thereto copies of the following documents and certifying, as applicable, that (x) below such copies are complete and correct copies of such documents, (y) such documents are in accordance with Section 1.2(a)full force and effect, and (z) such documents have not been amended, modified, or rescinded (and that the amendment, modification, or rescinding of such documents has not been authorized):
i. each of the Company’s Organizational Documents;
ii. the requisite written consent, or minutes of the meeting, of the Company’s board or managers or other governing body authorizing the execution and delivery of this Agreement and the Ancillary Documents, the Buyers shall deliver or cause to be delivered to Sellers Merger, and the cash amounts set forth on Schedule I hereto in respect performance of each Sellerthe transactions contemplated hereby and thereby, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two the Company; and
iii. the requisite consent, or minutes of the meeting, of the Company’s required equity holders authorizing the execution and delivery of this Agreement and the Ancillary Documents, and the performance of the transactions contemplated hereby and thereby, on behalf of the Company;
(2B) a certificate of good standing of the Company from the Secretary of State of the State of Colorado dated within five (5) Business Days prior to of the Closing Date Date;
(it being understood that, (1C) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms certificate executed by an officer of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to Company, dated the Closing Date, and which stating that the Buyers are entitled to receive under the terms hereinpreconditions specified in Section 6.2, shall, as they relate to the extent Company have been satisfied;
(D) from the Buyers have Company, a certificate certifying that Membership Interests are not received such dividends as “United States real property interests” within the meaning of Section 897(c) of the Closing DateCode (the “FIRPTA Certificate”); and
(E) the Ancillary Documents, reduce the aggregate amount payable duly executed by the Buyers to Sellers on Escrow Agent and the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Sellers’ Representative.
(ii) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers shall (1) Buyer and Parent will deliver or cause to be delivered to the Buyers Sellers or the certificatesSellers’ Representative the following:
(A) a certificate (the “Buyer Secretary Certificate”), if anydated the Closing Date, representing in form and substance reasonably satisfactory to Sellers’ Representative, signed by signed on behalf of Buyer by Buyer’s Secretary, attaching thereto copies of the Purchased Sharesfollowing documents and certifying, duly as applicable, that (x) such copies are complete and validly endorsed or accompanied by stock powers duly correct copies of such documents, (y) such documents are in full force and validly executed in blankeffect, and (z) such documents have not been amended, modified, or rescinded (2) in lieu and that the amendment, modification, or rescinding of any such certificatesdocuments has not been authorized):
i. each of Buyer’s Organizational Documents;
ii. the requisite written consent, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) or minutes of the Purchased Shares to one meeting, of Buyer’s board or more accounts designated by managers or other governing body authorizing the Buyersexecution and delivery of this Agreement and the Ancillary Documents, in and the case performance of the transactions contemplated hereby and thereby, on behalf of Buyer; and
iii. the requisite written consent, or minutes of the meeting, of Parent’s Board authorizing the execution and delivery of this Agreement and the Ancillary Documents, and the performance of the transactions contemplated hereby and thereby, on behalf of Parent;
(B) a certificate of good standing of each of Buyer and Parent from the Secretary of State its jurisdiction of organization, and each other state in which the Company is qualified to do business dated within five (15) and (2), in respect Business Days of the Purchased Shares to be purchased on Closing Date;
(C) a certificate executed by an officer of each of Buyer and Parent, dated the Closing Date Date, stating that the preconditions specified in Section 6.3 as set forth on Schedule I attached hereto they relate to Buyer and Parent have been satisfied; and
(D) the Ancillary Documents, duly executed by Buyer; and
(E) a capitalization table of Parent dated as it may be amended in accordance with Section 1.1) and sufficient to convey to of the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensClosing Date.
(iii) On At the Modified Closing DateClosing, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Parent will deliver:
(ivA) Notwithstanding anything in this Agreement to the contrarySellers’ Representative, unless the Buyers would not be obligated Closing Cash Payment;
(B) to purchase the Purchased Shares by reason of Escrow Agent, the failure of any Closing Condition Stock Consideration (excluding the Indemnity Escrow Shares) to be fulfilled as of deposited in the Termination Date, if on the day prior Stock Escrow Account; and
(C) to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amountEscrow Agent, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall Indemnity Escrow Shares to be reduced to deposited into the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofIndemnity Escrow Account.
Appears in 2 contracts
Samples: Merger Agreement (SFX Entertainment, INC), Merger Agreement (SFX Entertainment, INC)
Closing Deliveries. (ia) On As soon as commercially practicable after the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers shall Seller will deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto Purchaser:
(i) the duly executed Transfer Documents;
(ii) certificates representing the Shares, duly endorsed in respect blank, with all the appropriate share transfer tax stamps affixed to the Transfer Documents; and
(iii) resignations effective as of the Closing Date of each Sellerdirector and officer of the Company as the Purchaser may have requested in writing.
(b) At the Closing, the Purchaser will deliver or cause to be delivered to the Seller the Closing Payment, less any amounts withheld in accordance with Section 6.9 hereof, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf the account specified by the Seller.
(c) Upon delivery of Sellers has specified the items set forth in writing at least two (2Section 1.5(a) Business Days prior to the Closing Date Purchaser (it being understood that, (1) with respect to Holdingssuch delivery date, the delivery “Final Payment Date”), the Escrow Amount will be distributed to the Seller. In the event the Escrow Agreement has not been executed as of a release instruction the Final Payment Date, the Purchaser will pay the Escrow Amount to the Seller on the Final Payment Date.
(d) In the event that the documents set forth in Section 1.5(a) are not delivered within 90 calendar days of the Closing (which failure is not caused by any act or omission of the Purchaser), the Purchaser will be entitled to retain any interest accrued on the Escrow Amount pursuant to the Escrow Agent Agreement through the termination of the Escrow Agreement. The parties further recognize and agree that any breach of Section 1.5(a) may give rise to irreparable harm to the Purchaser for which money damages would not be an adequate remedy and, agree that, in accordance with addition to the other remedies, the Purchaser will be entitled to enforce the terms of this Agreement by decree of specific performance without the Escrow Agreement shall be deemed necessity of proving the inadequacy of a remedy of money damages.
(e) In connection with the Closing, the parties, as applicable, will cause the Company to satisfy this requirement with respect undertake the following as soon as reasonably practicable thereafter:
(i) convene a meeting of the board of directors of the Company (the “Company Board”) to discuss the following: (A) approval of the transfer of Shares from the Seller to the Escrow Funds deposited by Holdings Purchaser or its nominees as set forth in the Transfer Documents; and (2B) the amount appointment of any dividends that new directors nominated by the Purchaser to the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Board;
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) convene a second meeting of the Purchased Shares Company Board within 7 days of the meeting referred to one or more accounts designated in subsection (i) above to note the resignations of the existing directors, as may be requested by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Purchaser;
(iii) On file a Form 32 for the Modified Closing Dateresignation of the existing directors and appointment of new directors to the Company Board, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.applicable Law;
(iv) Notwithstanding anything in this Agreement record the changes to the contrary, unless Register of Members maintained by the Buyers would not be obligated to purchase the Purchased Shares by reason Company under applicable Law;
(v) make an endorsement back of the failure of any Closing Condition Share Certificate submitted to be fulfilled as of it by the Termination Date, if on Purchaser; and
(vi) instruct the day prior Company’s bank to change the authorized signatories for the Company’s bank account(s) to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number persons designated by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofPurchaser.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Selectica Inc)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers shall Seller will deliver or cause to be delivered to Sellers the cash amounts Buyer:
(i) [omitted];
(ii) a Transition Services Agreement by and between the Buyer and the Debtor (the “Transition Services Agreement”) acceptable to the Buyer;
(iii) a xxxx of sale in substantially the form of Exhibit C (the “Xxxx of Sale”) executed by Seller;
(iv) an assignment and assumption agreement by and between the Buyer and Debtor in substantially the form of Exhibit D (the “Assignment and Assumption Agreement”) acceptable to the Buyer;
(v) assignments of all Purchased Intellectual Property in substantially the forms of Exhibits E-1 and E-2 (collectively, the “IP Assignments”) executed by the Seller;
(vi) the supply agreement for Bivio B7000 platforms by and between Debtor and the Buyer, acceptable to the Buyer (the “Supply Agreement”);
(vii) a certificate in the form of Exhibit H, dated as of the Closing Date, executed by the Seller confirming the satisfaction of the conditions specified in Sections 6.1;
(viii) a receipt for the Cash Price, in form reasonably satisfactory to the Buyer;
(ix) stock certificate in the Debtor Sub (the “UK Stock Transfer”);
(x) such other documents, instruments and agreements as the Buyer reasonably requests for the purpose of consummating the transactions contemplated by this Agreement as set forth on Schedule I hereto in respect section 5.1(a);
(xi) the Officer Certificate updated as of each the Closing Date; and
(xii) a certificate in commercially reasonable form confirming and verifying Seller’s representations and warranties set forth in Section 3.1 of this Agreement.
(b) At the Closing, the Buyer will deliver or cause to be delivered to the Seller:
(i) by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated by the Seller in writing at least two (2) no later than five Business Days prior to the Closing Date (it being understood that, (1) with respect to HoldingsDate, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and Cash Price;
(2ii) the amount Xxxx of any dividends Sale and the IP Assignments, if any, that call for a signature by the Company has declared with Buyer;
(iii) [omitted];
(iv) a record date on or prior to certificate, in the Closing Dateform of Exhibit K, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce the aggregate amount payable executed by the Buyers to Sellers on Buyer confirming the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)satisfaction of the conditions specified in Sections 6.2;
(iiv) On the Closing DateSupply Agreement, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Buyer; and
(iiivi) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.[omitted];
(ivvii) Notwithstanding anything in this Agreement to such other documents, instruments and agreements as the contrary, unless Seller reasonably requests for the Buyers would not be obligated to purchase purpose of consummating the Purchased Shares transactions contemplated by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Foreclosure Sale Agreement, Foreclosure Sale Agreement (Isc8 Inc. /De)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Shareholders shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect PSI:
(i) an executed counterpart of each SellerEmployment Agreement, duly executed by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two the Executive that is a party thereto;
(2ii) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms an executed counterpart of the Escrow Agreement shall be deemed to satisfy this requirement with respect to Facility Lease, duly executed by an authorized representative of the Escrow Funds deposited Landlord;
(iii) constructive possession of the Records of PPPI;
(iv) a good standing certificate for PPPI issued by Holdings and the Secretary of State of the State of Illinois, no earlier than ten (210) the amount of any dividends that the Company has declared with a record date on or calendar days prior to the Closing Date;
(v) an affidavit from the Seller substantially in the form set forth in Section 1.1445-2(b)(2)(iv) of the Treasury regulations, certifying under penalties of perjury that the Seller is not a “foreign person” within the meaning of Section 1445 of the Code;
(vi) a certificate representing all of the issued and outstanding shares of PPPI Stock, duly endorsed in blank or accompanied by a stock power duly endorsed in blank;
(vii) a certificate from a duly authorized officer of the Seller, in form reasonably satisfactory to PSI, setting forth the resolutions of the Board of Directors of the Seller authorizing the execution of this Agreement and all Ancillary Agreements to which the Buyers are entitled Seller is a party and the taking of any and all actions deemed necessary or advisable to receive under consummate the terms hereintransactions contemplated herein and therein; and
(viii) such other usual and customary documents and instruments as PSI may reasonably request.
(b) At the Closing, shall, PSI shall deliver to the extent Seller:
(i) the Buyers have not received such dividends as of Cash Payment in the Closing Date, reduce manner and to the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Persons specified in Section 2.5 below;
(ii) On a certificate from the Closing DateSecretary or an Assistant Secretary of PSI, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered in form reasonably satisfactory to the Buyers Shareholders, setting forth the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) resolutions of the Purchased Shares Board of Directors of PSI authorizing the execution of this Agreement and all Ancillary Agreements to one or more accounts designated by which PSI is a party and the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear taking of any and all Liens.actions deemed necessary or advisable to consummate the transactions contemplated herein and therein;
(iii) On a good standing certificate for PSI issued by the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Secretary of State of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and State of Delaware no earlier than ten (210) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day calendar days prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on ; and
(iv) such other usual and customary documents and instruments as the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofShareholders may reasonably request.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Power Solutions International, Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers following will occur:
(a) Each Investor will deliver to the Company the Registration Rights Agreement, duly executed by such Investor.
(b) The Company will cause to be issued and delivered to each Investor:
(1) the Registration Rights Agreement, duly executed by the Company and all parties thereto;
(2) the Escrow Agreement, duly executed by all parties thereto; and
(3) the legal opinions of counsel to the Company and the Selling Stockholders, each in agreed form, addressed to the Investors.
(c) Each Investor shall deliver or cause to be delivered (for further redistribution to Sellers the cash amounts set forth on Schedule I hereto Selling Stockholders to reflect the particular Selling Stockholder Shares and Warrants being hereby offered and sold consistent with Section 2.1(a)) to the Escrow Agent, its Investment Amount, in respect of each SellerUnited States dollars and in immediately available funds, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to by the Escrow Agent for such purpose.
(d) Upon joint written instructions from the Company and the placement agent set forth in accordance with the terms of Schedule 3.3(f), the Escrow Agreement shall be deemed Agent will disburse the Investment Amount funded into Escrow by the Investors pursuant to satisfy this requirement with respect Section 2.2(c) to the Escrow Funds deposited by Holdings and (2) pay off the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable Liens contemplated by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by BuyersSection 5.2(e);.
(iie) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or The Company will cause to be issued and delivered to each Investor a certificate, registered in the Buyers the certificates, if anyname of such Investor, representing that number of shares of Common Stock to be issued and sold at Closing to such Investor, determined under Section 2.1(a), registered in the Purchased Sharesname of such Investor.
(f) Upon joint written instructions from the Company and the placement agent set forth in Schedule 3.3(f), duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) the Escrow Agent will disburse the balance of the Purchased Shares to one or more accounts designated Investment Amounts funded into Escrow by the Buyers, in the case of each of (1Investors pursuant to Section 2.2(c) and (2), in respect of the Purchased Shares not used to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended fund payments in accordance with Section 1.12.2(d) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.as follows:
(iii) On the Modified Closing Date, (1) the Buyers shall take to pay any such action as would be required under Section 1.3(d)(ifees and amounts listed on Schedule 3.3(f) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and not already paid above, and
(2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of to pay the Company Selling Stockholders for the Selling Stockholder Shares that Sellers are obligated to sell on the Modified Closing Dateand Warrants.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Magnetar Capital Partners LP), Securities Purchase Agreement (Think Partnership Inc)
Closing Deliveries. (ia) On the Closing DateAt Closing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Parent shall pay or deliver, the Buyers shall deliver or cause to be delivered paid or delivered, as the case may be, to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two Nightlife:
(2i) Business Days prior an amount equal to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Cash Payment;
(ii) On an original stock certificate evidencing the Closing DateStock Consideration;
(iii) Transaction Documents duly executed by the Acquiring Parties, subject as applicable; and
(iv) A certificate, in form and substance reasonably satisfactory to Nightlife, signed by an authorized officer of each of the Acquiring Parties certifying the matters described in Section 1.3(d)(iv7.1.
(b) belowAt the Closing, Sellers the Transferor Parties shall deliver to Acquiror:
(1i) deliver The Transferred Assets, including without limitation, copies of all books, records, files, and documents of each Transferor relating to any of the Transferred Assets or cause otherwise related or necessary to the commercial exploitation of the Transferred Assets or the Business, and without limiting the foregoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation, with all electronic media to be delivered fully functioning; provided that if Acquiror waives the closing condition that a Required Consent be obtained for any Transferred Contract, such Transferred Contract shall not be assigned to Acquiror at the Buyers Closing, but shall instead be assigned at such time as the certificates, if any, representing the Purchased Shares, Required Consent is obtained;
(ii) Transaction Documents duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the BuyersTransferor Parties, as applicable;
(iii) A certificate, in form and substance reasonably satisfactory to Acquiror, signed by each Transferor certifying the case of each of matters described in Section 6.1; and
(1iv) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as All Required Consents set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good6.3, valid and marketable title in and to such Purchased Shares, free and clear of any all Governmental Authorizations and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required amendments to and/or waivers under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount Transferred Contracts set forth on Schedule I hereto shall be reduced 6.4 required to consummate the amount derived transactions contemplated by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Contribution Agreement (SFX Entertainment, INC), Asset Contribution Agreement (SFX Entertainment, INC)
Closing Deliveries. (ia) On At or prior to the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall Seller will deliver or cause to be delivered to Sellers Buyer the cash amounts set forth on Schedule I hereto following:
(i) stock powers endorsed in respect blank necessary to transfer the certificates representing the Shares to Buyer and originals of all certificated securities representing the Shares and all other equity interests in the Company;
(ii) resignations or terminations of the directors of each member of the Company Group from their status as directors effective as of the Closing (other than those Persons identified by Buyer prior to Closing with respect to whom such resignation or termination is not required);
(iii) the certificates referred to in Sections 7.3(a) and 7.3(b);
(iv) a non-foreign affidavit, dated as of the Closing Date, in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code, stating that Seller is not a “foreign person” as defined in Section 1445 of the Code (or if Seller is a disregarded entity, a certificate that Seller is a disregarded entity and the appropriate member of the Affiliated Group is not a “foreign person” as defined in Section 1445 of the Code);
(v) the Closing Financial Certificate;
(vi) a copy of the Seller Parent Guaranty executed by Seller Parent Guarantor;
(vii) a copy of the Transition Services Agreement executed by Parent and Seller;
(viii) each of the Required Third-Party Consents, to the extent required to be executed by a member of the Company Group, a member of the Seller Group, or any other Person (other than the Buyer Group); and
(ix) an instrument of discharge, termination and release, following repayment in accordance with Section 2.3 and Section 2.5(b)(i), of all of the Net Intercompany Debt owed by any member of the Company Group to the Seller Group in accordance with the Intercompany Debt Statement in a form reasonably satisfactory to Buyer.
(b) At the Closing, Buyer will deliver or cause to be delivered to Seller the following:
(i) the Closing Payments (and evidence of receipt thereof), by wire transfer of immediately available funds to such the accounts as RiverNorth Capital on behalf of Sellers has specified in writing which are designated by Seller at least two three (23) Business Days prior to the Closing Date (it being understood thatClosing, (1) with respect in the amounts determined pursuant to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Section 2.3;
(ii) On the Closing Date, subject certificates referred to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1Sections 7.2(a) and (27.2(b), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a copy of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Transition Services Agreement executed by Buyer;
(iv) Notwithstanding anything in this Agreement each of the Required Third-Party Consents, to the contrary, unless the Buyers would not extent required to be obligated to purchase the Purchased Shares executed by reason a member of the failure Buyer Group; and
(v) the Letter of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofCredit.
Appears in 2 contracts
Samples: Share Purchase Agreement (SSI Southland Holdings, Inc.), Share Purchase Agreement (Trestle Transport, Inc.)
Closing Deliveries. (i) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver (or cause to be delivered delivered) to Sellers the cash amounts Investor, in addition to all other closing deliveries set forth on Schedule I hereto in respect of each SellerSection 5 and Section 6, by wire transfer of immediately available funds pursuant to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two Section 2.1:
(2i) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms copy of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount Register of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as Members of the Closing DateCompany, reduce the aggregate amount payable duly certified by the Buyers registered agent of the Company, updated to Sellers on reflect the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company subscription of the applicable Subscription Shares not actually purchased by Buyers)the Investor;
(ii) On a copy of duly executed share certificate issued in the Closing Datename of the Investor representing the applicable Subscription Shares being issued to the Investor at the Closing, subject to Section 1.3(d)(ivwith the original (duly executed for and on behalf of the Company) below, Sellers shall (1) deliver or cause to be delivered to the Buyers Investor within ten (10) Business Days after the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Closing;
(iii) On a copy of the Modified Closing Date, (1) Memorandum and Articles duly adopted by the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Board and shareholders of the Company Shares that in the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action form attached hereto as would be required under Section 1.3(d)(ii) in respect Exhibit A, with evidence of the Company Shares that Sellers are obligated filing of such adopted Memorandum and Articles with the Registrar of Companies in the Cayman Islands to sell on be delivered to the Modified Closing Date.Investor within twenty (20) Business Days after the Closing;
(iv) Notwithstanding anything a copy of the Investors’ Rights Agreement duly executed by the Group Company Parties, the Founder Parties, the Angel Investor Parties, the Series A Investors and the Current Series B Investors in this Agreement the form attached hereto as Exhibit C;
(v) documents evidencing that each of the Founder Parties, Angel Investor Parties, Series A Investors and Current Series B Investors has waived or has been deemed to waive its pre-emption right with respect to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares Subscription Shares; and
(vi) a certificate duly executed by reason one director of the failure of any Closing Condition to be Company (a) stating that the conditions specified in Section 5 have been fulfilled as of the Termination DateClosing and (b) attaching thereto copies of all resolutions that shall approve the transactions contemplated under the Transaction Documents, if on including without limitation, (i) the day prior to entry into this Agreement, (ii) the Closing Date, Buyers provide written notice to RiverNorth that they will, on adoption of the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify Memorandum and Articles in the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I form attached hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750as Exhibit A, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For (iii) the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation adoption of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Investors’ Rights Agreement in accordance with Section 6.4 hereof.the form attached hereto as Exhibit C.
Appears in 2 contracts
Samples: Additional Series B Preferred Share Purchase Agreement (Luckin Coffee Inc.), Additional Series B Preferred Share Purchase Agreement (Luckin Coffee Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Sellers shall deliver or cause a Company Entity to be delivered deliver, as applicable, to Purchaser:
(i) The Escrow Agreement executed between the Escrow Agent, the Sellers and Purchaser on terms that are mutually acceptable to the cash amounts set forth on Schedule I parties;
(ii) Copies of resolutions, certified by a duly authorized representative of the Company, as to the authorization of this Agreement and all of the transactions contemplated hereby by the Company;
(iii) An assignment of the Membership Interests to Purchaser substantially in the form attached hereto in respect of as Exhibit B, duly executed by each Seller, and copies of resolutions or other documentation, certified by wire transfer a duly authorized representative of immediately available funds the Company, as necessary to such accounts admit Purchaser as RiverNorth Capital on behalf a member of Sellers has specified the Company;
(iv) Certificates of existence or similar certificates in writing at least two North Carolina and each other jurisdiction where any Company Entity is qualified to do business, dated not more than ten (210) Business Days prior to the Closing Date (it being understood thatDate, (1) with respect to Holdings, the delivery of a release instruction certifying as to the Escrow Agent good standing of each such Company Entity in accordance with the terms such jurisdictions;
(v) Copies reasonably acceptable to Purchaser of all consents, approvals and notices listed in Section 2.11(a)(v) of the Escrow Agreement shall be deemed Disclosure Schedule;
(vi) A release from each of the Sellers in substantially the form attached hereto as Exhibit C, duly executed in favor of the Company;
(vii) Payoff letters (including lien releases) and/or invoices in a form reasonably satisfactory to satisfy this requirement with respect Purchaser from each of the Persons to the Escrow Funds deposited by Holdings and (2) the amount of which any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce Date Indebtedness listed in Section 2.11(a)(vii) of the aggregate amount Company Disclosure Schedule or any Company Transaction Expenses are payable by any member of the Buyers Company Group;
(viii) Written resignations of each of the managers, directors and officers of the Company Entities;
(ix) A certificate of non-foreign status that complies with Treasury Regulations Section 1.1445-2(b)(2) from each Seller;
(x) An IRS Form W-9 duly executed by each of the Sellers;
(xi) A subscription agreement duly executed by each of the Sellers that is mutually acceptable to Sellers on the parties and reflects customary terms for like agreements, providing for the issuance of the Closing Date; providedDate Equity Consideration to each Seller;
(xii) All books and records of the Company Entities or relating to their businesses and operations;
(xiii) Such other documents and instruments as may be reasonably requested by Purchaser.
(b) At the Closing, howeverPurchaser shall deliver to the Sellers:
(i) The Escrow Agreement executed between the Escrow Agent, no such offset with respect the Sellers and Purchaser on terms that are mutually acceptable to dividends shall apply to Company Shares not actually purchased by Buyers)the parties;
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the BuyersA voting letter, in the case form agreed to by the Sellers, duly executed by the majority stockholder of each Purchaser;
(iii) Payment of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended Cash Payment and Closing Date Equity Consideration, in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.2.4; and
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not Such other documents and instruments as may be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number reasonably requested by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.Sellers
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Cerecor Inc.)
Closing Deliveries. At the Closing:
(a) Accord and Xxxx Xxxxxx as applicable will deliver to Buyer:
(i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior a special warranty deed conveying good marketable fee simple title to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, Property free and clear of any and all Liens.deeds of trust, mortgages or other liens or indebtedness, encumbrances, conditions, easements, rights of way, assessments and restrictions except Permitted Encumbrances (as hereinafter defined). Accord shall pay any prepayment fee due its lender at settlement;
(ii) a xxxx of sale conveying to Buyer the Personal Property and Inventory free and clear of all liens, claims and encumbrances;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect an assignment of each Operating Agreement and assignments by each of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated Restaurant Lease to sell on Buyer in form and substance satisfactory to Buyer and its legal counsel and executed by Accord and Xxxx Xxxxxx as the Modified Closing Date.case may be;
(iv) Notwithstanding anything such other assignments, certificates of title, transfer tax declarations or certificates, releases by governmental bodies from holdback requirements under any law relating to taxes, documents and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in this Agreement form and substance satisfactory to Buyer and its legal counsel and executed by Accord, Xxxx Xxxxxx and the contrarySellers, unless as the Buyers would not be obligated to purchase the Purchased Shares by reason case may be;
(v) [Intentionally Omitted]; and
(vi) evidence of the failure of any Closing Condition transfer to be fulfilled as Buyer of the Termination Datelicense to serve alcoholic beverages at the Hotel and Restaurant; provided that in the event such transfer has not been approved by the governmental authority, if on Seller agrees to enter into a lease agreement or customary terms and conditions to enable Buyer or its designee to effect continuous uninterrupted alcoholic beverage service at the day prior Hotel and Restaurant until said license transfer is issued and effective.
(b) Buyer will deliver to Seller:
(i) the Purchase Price by wire transfer to an account specified by the Seller in a writing delivered to Buyer at least three business days before the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (MHI Hospitality CORP), Asset Purchase Agreement (MHI Hospitality CORP)
Closing Deliveries. (i) On The following instruments, agreements and documents shall be executed and delivered at the Closing Dateand all such documents shall be deemed delivered simultaneously and all transactions contemplated hereby and thereby shall be deemed to take place simultaneously, subject and no such document shall be deemed delivered until all such transactions are completed and all such documents are delivered:
2.2.1 The following deliveries will be made by each Seller to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), Pointer at the Buyers shall deliver or cause to be delivered to Sellers Closing:
2.2.1.1 Resolution of the cash amounts set forth on Schedule I hereto in respect Board of Directors of each Seller, by wire substantially in the form attached hereto as Exhibit 2.2.1.1, authorizing the sale and transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified the respective Shagrir Shares in writing at least two (2) Business Days prior to consideration for the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms applicable portion of the Escrow Agreement shall be deemed to satisfy this requirement with respect to Shagrir Consideration;
2.2.1.2 A duly executed shares transfer deed regarding the Escrow Funds deposited by Holdings sale and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as transfer of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Seller's portion of the Purchased Shares to one or more accounts designated by the BuyersShagrir Shares, in the case form attached hereto as Exhibit 2.2.1.2;
2.2.1.3 Notice of each resignation of (1) and (2)the directors appointed by the Sellers to the Board of Directors of Shagrir, in the form attached hereto as Exhibit 2.2.1.3.
2.2.1.4 Certificate of exemption of withholding tax at source, or providing for a specific percentage of withholding, in respect of the Purchased Shares Shagrir Consideration. Should no certificate of exemption be provided, or a certificate providing for a specific percentage of withholding, Pointer shall withhold tax at source, to be purchased on deducted from the Cash Consideration, at the highest rate set by law.
2.2.1.5 a certificate executed by an officer of each of the Sellers in the form attached hereto as Exhibit 2.
2.1.5 certifying that each of the representations and warranties of such Seller under this Agreement are true and accurate as of the Closing Date as set forth if made on Schedule I the Closing Date.
2.2.2 The following deliveries will be made by Pointer to the Sellers at the Closing:
2.2.2.1 Resolution of the Board of Directors of Pointer, substantially in the form attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to Exhibit 2.2.2.1, authorizing the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear Shagrir Consideration;
2.2.2.2 Issuance of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) Share Certificates in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect Pointer Shares;
2.2.2.3 Transfer of the Company Shares that Cash Consideration to the bank accounts of the Sellers are obligated to sell on by way of immediately available funds wire transfer, per the Modified Closing Datedetails attached in Schedule A.
2.2.2.4 a certificate executed by an officer of Pointer in the form attached hereto as Exhibit 2.
(iv) Notwithstanding anything in 2.2.4 certifying that each of the representations and warranties of Pointer under this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled are true and accurate as of the Termination Date, Closing Date as if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, made on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Share Purchase Agreement (Pointer Telocation LTD), Share Purchase Agreement (Gandyr Investments Ltd.)
Closing Deliveries. At the Closing, including any Closing contemplated by Section 5.04 of this Agreement, the Company and TAS shall make the following deliveries:
(i) On The Company shall deliver to TAS a certificate of the Closing DateChief Executive Officer or Chief Operating Officer and the Chief Financial Officer of the Company, subject to certifying that:
(A) the representations and warranties of the Company set forth in this Agreement, disregarding all materiality and Company Material Adverse Effect qualifiers (except as set forth in Section 1.3(d)(iv) below and in accordance with Section 1.2(a2.07(b)), are true and correct, in each case as of the Buyers shall deliver date of this Agreement and at and as of the Effective Time, as though made on and as of such date (unless any such representation or cause warranty is made only as of a specific date, in which event as of such specified date), except for failures to be delivered true and correct which would not, individually or in the aggregate, have a Company Material Adverse Effect and which result, or would reasonably be expected to Sellers result, in costs or losses to the Company, together with any costs or losses to the Company referenced in Subsection (B) next following, aggregating in excess of $5 million, in each case determined on the basis of cash amounts set forth on Schedule I hereto out-of-pocket costs to the Company and its Subsidiaries;
(B) the Company has performed in respect all material respects each of the obligations, and complied in all material respects with each Sellerof the agreements and covenants, by wire transfer of immediately available funds required to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing be performed by, or complied with by, it under this Agreement at least two (2) Business Days or prior to the Closing Date (it being understood thatClosing, (1) with respect to Holdingsprovided that each of such obligations, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement agreements and covenants shall be deemed to satisfy this requirement with respect have been performed in all material respects so long as the costs or losses to the Escrow Funds deposited by Holdings and (2) the amount Company arising from any breach of any dividends that thereof, or which would reasonably be expected to result in costs or losses to the Company, together with costs or losses to the Company has declared with a record date referenced in Subsection (A) above, do not in the aggregate exceed $5 million, in each case determined on or prior the basis of cash out-of-pocket costs to the Company and its Subsidiaries; and
(C) There has not occurred a Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Material Adverse Effect.
(ii) On the Closing Date, subject The Company shall deliver to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly TAS an executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) original copy of the Purchased Shares to one or more accounts designated by the Buyers, fairness opinion from Hxxxxxxx Lxxxx Xxxxxx & Zxxxx as described in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens2.18 that has not been withdrawn.
(iii) On the Modified Closing Date, (1) the Buyers The Company shall take any such action as would be required under Section 1.3(d)(i) in respect deliver to TAS an executed original copy of the Company Shares that opinion of Akerman & Senterfitt LLP, counsel to the Buyers are obligated Company, as to purchase on the Modified Closing Date matters addressed in Sections 2.01(a) and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)c), for purposes of this Section 1.32.03, each amount on Schedule I hereto shall be reduced 2.04 and 2.05, in form and substance reasonably acceptable to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, TAS and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofits counsel.
Appears in 2 contracts
Samples: Merger Agreement (Timco Aviation Services Inc), Merger Agreement (Harber Lacy J)
Closing Deliveries. At or prior to each Closing, with respect to each Class B-1 Member that requests the Exchange contemplated for such Closing:
(i) On to the Closing Dateextent that such Class B-1 Member’s Class B-1 Units are certificated, subject such Class B-1 Member shall deliver to the Company, Intermediate Holdco or Pubco, as applicable, one or more certificates representing the number of Class B-1 Units specified in the applicable Exchange Request (or an affidavit of loss in lieu thereof in customary form, without any requirement to post a bond or furnish any other security), accompanied by security transfer powers, in form reasonably satisfactory to the Company, Intermediate Holdco or Pubco, as applicable, duly executed in blank by such Class B-1 Member or such Class B-1 Member’s duly authorized attorney, to be Exchanged based on the Exchange Rate in effect at the applicable Closing;
(ii) to the extent such Class B-1 Member’s shares of Class B Common Stock are certificated, such Class B-1 Member shall deliver to the Company, Intermediate Holdco or Pubco, as applicable, one or more certificates representing the number of shares of Class B Common Stock specified in the applicable Exchange Request (or an affidavit of loss in lieu thereof in customary form, without any requirement to post a bond or furnish any other security), accompanied by security transfer powers, in form reasonably satisfactory to the Company, Intermediate Holdco or Pubco, as applicable, duly executed in blank by such Class B-1 Member or such Class B-1 Member’s duly authorized attorney;
(iii) such Class B-1 Member shall represent in writing that no Liens exist on the Class B-1 Units and Class B Common Stock delivered pursuant to Sections 2.01(d)(i) and 2.01(d)(ii) (other than transfer restrictions imposed by or under applicable securities laws, the LLC Agreement and this Agreement), or that any such Liens have been released;
(iv) if such Class B-1 Member delivers to the Company, Intermediate Holdco or Pubco, pursuant to Section 1.3(d)(iv2.01(d)(i) below and in accordance with Section 1.2(aor 2.01(d)(ii), a certificate representing a number of Class B-1 Units or shares of Class B Common Stock that is greater than the Buyers number of Class B-1 Units or shares of Class B Common Stock specified in the applicable Exchange Request, the Company, Intermediate Holdco or Pubco will deliver to such Class B-1 Member certificates representing the excess Class B-1 Units or Class B Common Stock, as applicable; and
(v) The Company, Intermediate Holdco or Pubco, as applicable, shall deliver or cause to be delivered to Sellers such Class B-1 Member (x) the cash amounts set forth on Schedule I hereto applicable Stock Consideration, registered in respect of each Sellersuch names and such denominations as such Class B-1 Member requested pursuant to Section 2.01(b)(iii) or, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers if Pubco has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood thatso elected, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2y) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to applicable Cash Consideration. To the extent the Buyers have not received such dividends any Stock Consideration is to be paid or settled through the facilities of The Depository Trust Company, the Company, Intermediate Holdco or Pubco, as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Dateapplicable shall, subject to Section 1.3(d)(iv3.02(a) below, Sellers shall (1) upon the written instruction of a Class B-1 Member, deliver or cause to be delivered such Stock Consideration deliverable to such Class B-1 Member, through the facilities of The Depository Trust Company, to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) account of the Purchased Shares to one or more accounts participant of The Depository Trust Company designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensClass B-1 Member.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Exchange Agreement (MediaAlpha, Inc.), Exchange Agreement (MediaAlpha, Inc.)
Closing Deliveries. (i) On Unless waived in writing by Pubco, CBA shall have delivered, at or before the Closing DateClosing, subject to Section 1.3(d)(iv) below Pubco and in accordance with Section 1.2(a)Parent, the Buyers following documents, each of which shall deliver or cause be in full force and effect at Closing:
(1) the certificate of merger for the Second Merger, duly executed by Second Merger Sub and CBA;
(2) evidence in a form reasonably satisfactory to be delivered to Sellers Pubco that the cash amounts consents, approvals, waivers and notices set forth on Schedule I hereto 8.2(d) shall have been obtained or given, as applicable;
(3) a certificate of an authorized officer of CBA certifying that (i) attached thereto are true and complete copies of all resolutions adopted by the Manager of CBA authorizing the execution, delivery and performance of this Agreement and the other transaction documents to which CBA is a party and the consummation of the transactions contemplated hereby and thereby, and (ii) all such resolutions are in respect full force and effect and are all the resolutions adopted by the Manager in connection with the transactions contemplated hereby;
(4) a certificate of each Selleran authorized officer of CBA certifying that the conditions set forth in Section 8.2(a), by wire transfer Section 8.2(b) and Section 8.2(c) have been satisfied;
(5) the Certificate of immediately available funds to such accounts as RiverNorth Capital on behalf Formation of Sellers has specified in writing at least two CBA, certified within ten (210) Business Days prior to Closing by the Closing Date secretary of state of the state of Delaware and a good standing certificate from the secretary of state of the state of Delaware, dated within ten (it being understood that, 10) Business Days of Closing;
(16) with respect to Holdings, the delivery of a release instruction notice to the Escrow Agent Internal Revenue Service, in accordance with the terms requirements of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing DateTreasury Regulations Section 1.1445-11T(d)(2)(i), and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing DateDate and executed by CBA, reduce together with written authorization for Parent to deliver such notice to the aggregate amount payable Internal Revenue Service on behalf of CBA after the Closing, and a certification that the CBA Equity Interests are not “United States real property interests” as defined in Section 897(c) of the Code prepared in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code (in a form reasonably acceptable to Pubco), in each case, validly executed by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)a duly authorized officer of CBA;
(ii7) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased SharesCohanzick Services Agreement, duly executed by CBA Member and validly endorsed or accompanied CBA;
(8) the Stockholder Agreement, duly executed by stock powers CBA Member;
(9) the Voting Agreement, duly executed by Parent and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as shareholders set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.; and
(iii) On the Modified Closing Date, (110) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DateRegistration Rights Agreement, duly executed by CBA Member.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Merger Agreement (Enterprise Diversified, Inc.), Merger Agreement (Enterprise Diversified, Inc.)
Closing Deliveries. (ia) On or before the Closing Date, subject Seller covenants and agrees to Section 1.3(d)(ivdeliver to the Buyers (or either of them) below the following:
(i) written notice from Seller that all conditions precedent for which Seller is responsible have been satisfied;
(ii) a notarized copy of the CBR License;
(iii) a copy of the duly executed Transfer Notice from Seller and each of the Buyers to the Company, stating that, in accordance with the terms and conditions of this Agreement, Seller has transferred full ownership rights to the Interest to TeleRoss and to SFMT, and TeleRoss and SFMT have accepted such ownership rights, which Transfer Notice shall have been countersigned by an authorized representative of the Company; provided, however, that the Transfer Notice shall be executed by the Seller only after the occurrence of the actions set out in Section 1.2(a3.1(c);
(iv) an original of the Amendments stamped with the Company's seal, as well as originals of any other documents that are necessary in accordance with the Buyers shall deliver Laws of the Russian Federation to transfer to TeleRoss and SFMT, respectively, all ownership rights in and to the Interest and to register the Amendments with all relevant Governmental Entities, including, without limitation, minutes of the general meeting of participants of the Company approving the Amendments, all dated (or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two sealed) not more than five (25) Business Days prior to the Closing Date Date;
(v) an original or notarized copy of the resolution adopted by Seller, its board of directors and/or other governing body, as appropriate, evidencing the due authorization of Seller to enter into and perform all of its obligations under this Agreement, including, but not limited to, taking such actions as are required of it being understood thaton the Closing Date, and the execution, delivery and performance of all other agreements, instruments or other documents contemplated hereby;
(1vi) with respect an irrevocable proxy in favor of SFMT permitting SFMT to Holdingsvote the Stock Consideration in its sole discretion, the delivery of a release instruction to the Escrow Agent extent possible under applicable Laws, and until such time as the Amendments have been registered in accordance with with, and subject to the terms of and conditions of, Section 4.2 and the Escrow Agreement shall Release has occurred, to be deemed substantially in the form of Exhibit G;
(vii) a stock power for the Stock Consideration in favor of GTI as provided for in Section 2.2(c);
(viii) all other instruments, agreements, certificates, opinions and documents required to satisfy this requirement with respect to the Escrow Funds deposited be delivered by Holdings and (2) the amount of any dividends that Seller or the Company has declared with a record date on or prior to the Closing DateDate pursuant to this Agreement; and
(ix) an opinion of counsel to Seller, and which the Buyers are entitled to receive under the terms herein, shall, reasonably satisfactory to the extent the Buyers have not received such dividends as of Buyers.
(b) On or before the Closing Date, reduce and subject to occurrence or performance of each of the aggregate amount payable by conditions precedent set forth in Section 4.1 and each of the Buyers Conditions Precedent to Sellers Buyers' Obligations set forth in Article VIII, each of the Buyers, or either of them as required, covenants and agrees to deliver to the Seller the following:
(i) the Notice on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Conditions Precedent;
(ii) On instructions for deposit of the Closing Date, subject to Cash Consideration into the Escrow Account (as provided in Section 1.3(d)(iv2.2(c)) below, Sellers shall (1) deliver or cause to be delivered in the form of a facsimile payment instruction issued to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange bank responsible for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by Cash Consideration, with an acknowledgement from such bank and confirmation from the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Escrow Agent;
(iii) On a letter from a reputable bank selected by TeleRoss to the Modified Closing Date, (1) the Buyers shall take any effect that such action as would be required bank has agreed to assist TeleRoss in meeting its payment obligations under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.this Agreement;
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason an acknowledgment of receipt of the failure of any Closing Condition to be fulfilled as of TeleRoss Promissory Note and the Termination DateGTI Guarantee, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number issued by the quotient resulting from the Notice Amount divided by 57,628,750Escrow Agent, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject pursuant to the terms and conditions of the Escrow Agreement;
(v) an acknowledgment of receipt by the Escrow Agent of the Stock Certificate and the stock power in favor of GTI (as provided in Section 2.2(c));
(vi) an acknowledgment of receipt issued by the Escrow Agent of a notice of transfer, undated and signed by each of the Buyers, in substantially the form attached hereto as Exhibit H;
(vii) original or notarized copies of the resolutions adopted by each Buyer, its board of directors and/or other governing body, as appropriate, evidencing the due authorization of each Buyer to enter into and perform its obligations under this Agreement. Nothing shall prevent RiverNorth from seeking ;
(viii) all other instruments, agreements, certificates, opinions and documents required to compel specific performance be delivered by either Buyer on or prior to the Closing Date pursuant to this Agreement; and
(ix) an opinion of counsel to each of the terms this Agreement in accordance with Section 6.4 hereofBuyers reasonably satisfactory to the Seller.
Appears in 2 contracts
Samples: Ownership Interest Purchase Agreement (Golden Telecom Inc), Ownership Interest Purchase Agreement (Golden Telecom Inc)
Closing Deliveries. At the Closing:
(ia) On GenPar will transfer to the Closing DateSeller the Series A GP Shares, subject and will deliver to Section 1.3(d)(ivthe Seller certificates representing the Series A GP Shares, duly endorsed for transfer or accompanied by a stock power duly executed in blank, and any other documents that are necessary to transfer to the Seller good title to the Series A GP Shares;
(b) below Newco will issue to the Seller the Series A LP Shares and the Series B Shares, and will deliver to the Seller certificates representing the Series A LP Shares and the Series B Shares and any other documents that are necessary to transfer to the Seller good title to the Series A LP Shares and the Series B Shares;
(c) the Seller will execute and deliver to the Buyers any documents that are necessary to transfer to GenPar and Newco good title to the GP Interest and the LP Interest, respectively, including, without limitation, the Assignment of GP Interest and the Assignment of LP Interest (as defined in Sections 5.1(m) and (n), respectively);
(d) GenPar will be admitted to the Partnership as successor general partner in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms 12.19 of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Partnership Agreement;
(iie) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to Newco will be delivered admitted to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date Partnership as set forth on Schedule I attached hereto (as it may be amended a limited partner in accordance with Section 1.112.8 of the Partnership Agreement;
(f) the Seller will transfer and sufficient deliver to convey GenPar the originals or copies of all of the books, records, ledgers, electronic media, proprietary information and other data and all other written or electronic depositories of information of and relating to the Buyers goodPartnership;
(g) Xxxxxx will cause Elite to execute and deliver to SCMI any documents that are necessary to transfer to SCMI good title to, a valid leasehold interest in or a valid and marketable title in and enforceable right to such Purchased Sharesuse, free and clear of as applicable, any and all Liens.assets owned, leased or otherwise used by Elite, in connection with its provision of services to the Partnership or otherwise (collectively, the "Elite Assets"), including, without limitation, a Xxxx of Sale, substantially in the form of Exhibit C attached hereto (the "Xxxx of Sale"), which Xxxx of Sale will include a complete and accurate listing of all of the Elite Assets; and
(iii) On the Modified Closing Date, (1h) the Buyers shall take any such action as would be and the Seller will execute and deliver the documents required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as delivered by each of the Termination Date, if on the day prior them pursuant to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.Article V.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (Vsource Inc), Partnership Interest Purchase Agreement (Vsource Inc)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Purchaser the cash amounts set forth following:
(i) one or more stock certificates evidencing that number of Shares indicated on Schedule I A hereto under the heading “Shares”, registered in respect the name of each Sellersuch Purchaser;
(ii) a Warrant, by wire transfer registered in the name of immediately available funds such Purchaser, pursuant to which such accounts as RiverNorth Capital Purchaser shall have the right to acquire that number of shares of Common Stock indicated on behalf of Sellers has specified in writing at least two Schedule A hereto under the heading “Warrant Shares”;
(2iii) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends evidence that the Company Certificate of Designations has declared with a record date been filed and become effective on or prior to the Closing DateDate with the Secretary of State of Nevada, in form and which the Buyers are entitled substance mutually agreed to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)parties;
(iiiv) On the Closing Datelegal opinion of Company Counsel, subject in the form of Exhibit E, executed by such counsel and delivered to Section 1.3(d)(ivthe Purchasers;
(v) belowthe Registration Rights Agreement duly executed by the Company;
(vi) duly executed Transfer Agent Instructions delivered to the Company’s transfer agent; and
(vii) any other documents reasonably requested by a Purchaser or counsel to any Purchaser in connection with the Closing.
(b) At the Closing, Sellers each Purchaser shall (1) deliver or cause to be delivered to the Buyers Company the certificatesfollowing:
(i) the purchase price set forth opposite such Purchaser’s name on Schedule A hereto under the heading “Purchase Price”, if anyin United States dollars and in immediately available funds, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed wire transfer to an account designated in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated writing by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to Company for such Purchased Shares, free and clear of any and all Liens.purpose; and
(iii) On the Modified Closing Date, (1ii) the Buyers shall take any Registration Rights Agreement duly executed by such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DatePurchaser.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Global Epoint Inc), Securities Purchase Agreement (Global Epoint Inc)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Sellers shall deliver or cause to be delivered to Sellers the cash Buyer:
(i) stock certificates representing the Purchased Shares, accompanied by stock powers for the Purchased Shares, duly executed by the applicable Seller;
(ii) payoff letters, in form and substance reasonably satisfactory to the Buyer, as to the full payment of all Funded Indebtedness (other than the Assumed Indebtedness), and the release of the Companies from further Liability related thereto and the release of any Liens related thereto, each effective upon payment pursuant to Section 2.1(b) of the applicable Funded Indebtedness specified on the Flow of Funds Memorandum;
(iii) an appropriate receipt and release in a form and substance acceptable to the Buyer from each Person entitled to Transaction Fees, acknowledging that such Person has received all amounts due such Person from the Companies, and releasing the Companies from any further Liability with respect thereto, each effective upon payment pursuant to Section 2.1(c) of the applicable Transaction Fees specified on the Flow of Funds Memorandum;
(iv) an employment agreement with each of the Key Employees, duly executed by the applicable Key Employee, in form and substance reasonably satisfactory to the Buyer (the “Employment Agreements”);
(v) a management and administrative services agreement by and among the Buyer, 2WRMS and the 2WRMS Shareholders, duly executed by 2WRMS and the 2WRMS Shareholders in form and substance reasonably satisfactory to the Buyer (the “Management Services Agreement”);
(vi) a share transfer agreement in form and substance reasonably satisfactory to the Buyer, duly executed by each of the 2WRMS Shareholders (the “Share Transfer Agreement”);
(vii) an asset transfer agreement by and among the Buyer and the Companies, duly executed by each of the Companies in form and substance reasonably satisfactory to the Buyer (the “Asset Transfer Agreement”) to transfer certain assets and liabilities between the Buyer and the Companies as set forth therein;
(viii) an escrow agreement in form and substance reasonably satisfactory to the Buyer, duly executed by the Shareholder Representative (the “Escrow Agreement”);
(ix) written resignations of all members of each Company’s board of directors and officers;
(x) a good standing certificate for each Company from the state of its organization and the Secretary of State in each other jurisdiction in which such Company is required to qualify to do business as a foreign corporation, in each case dated as of a date as near as reasonably practicable to the Closing Date;
(xi) the written consents, approvals, waivers, notices or similar authorizations required to be obtained or given by any Person in order to consummate the transactions contemplated by the Transaction Documents, including those consents, approvals, waivers, notices or similar authorizations set forth on Schedule I hereto 2.4(a)(x), in respect form and substance reasonably acceptable to the Buyer;
(xii) evidence satisfactory to the Buyer that the Companies 401(k) Plan and the other Employee Benefits Plan have been terminated;
(xiii) evidence satisfactory to the Buyer of payment in full of all Transaction Fees effective as of the Closing;
(xiv) an investment questionnaire from each SellerSeller in form and substance satisfactory to the Buyer;
(xv) an agreement, in form and substance reasonably satisfactory to the Buyer, terminating the Wxxxxx Phantom Share Agreement, duly executed by wire transfer 2WRCO and Dxxxxx Xxxx Xxxxxx (the “Wxxxxx Phantom Share Termination Agreement”);
(xvi) for each outstanding Company PPP Loan at signing, either (i) a PPP Escrow Agreement, duly executed by the Seller Representative, the applicable PPP Lender and the applicable Company, along with evidence reasonably satisfactory to the Buyer that a loan forgiveness application has been submitted to the PPP Lender for such Company PPP Loan or (ii) evidence reasonably satisfactory to the Buyer that each of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers the loan forgiveness applications for Company PPP Loans outstanding at signing has specified in writing at least two been forgiven by the U.S. Small Business Administration;
(2xvii) no less than three (3) Business Days prior to the Closing Date (it being understood thatDate, (1) with respect to Holdings, Schedule A setting forth the delivery of a release instruction to the Escrow Agent Companies’ Funded Indebtedness included in accordance with the terms Assumed Indebtedness as of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and Closing Date;
(2xviii) the amount of any dividends that the Company has declared with a record date on or no less than three (3) Business Days prior to the Closing Date, the Estimated Closing Statement, including (A) the Estimated Working Capital, (B) the Estimated Closing Cash and which (C) the Buyers are entitled to receive under the terms herein, shall, Estimated Assumed Indebtedness; and
(xix) such other documents or instruments in form and substance reasonably acceptable to the extent Buyer as the Buyers have not received such dividends Buyer may deem reasonably necessary or as of may be required to consummate the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);transactions contemplated hereby.
(iib) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers the Buyer shall (1) deliver or cause to be delivered to the Buyers Sellers:
(i) the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) cash balance of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of Initial Purchase Price;
(1ii) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto Payment Shares (as it may be amended in accordance with Section 1.1) and sufficient to convey to less the Buyers good, valid and marketable title in and to such Purchased Escrowed Shares, free and clear of any and all Liens.);
(iii) On evidence reasonably satisfactory to the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares Sellers that the Buyers are obligated to purchase on Buyer has made the Modified Closing Date and (2) Sellers shall take any such action as would be payments required under by Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.2.1;
(iv) Notwithstanding anything in this Agreement each of the Employment Agreements, duly executed by an authorized officer of the Buyer;
(v) the Management Services Agreement, duly executed by the Buyer;
(vi) the Share Transfer Agreement, duly executed by the Buyer;
(vii) the Asset Transfer Agreement, duly executed by the Buyer; and
(viii) the Escrow Agreement, duly executed by the Buyer.
(c) At the Closing, the Buyer shall also deliver, or cause to be delivered, the Escrowed Shares to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofEscrow Agent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Urban-Gro, Inc.), Stock Purchase Agreement (Urban-Gro, Inc.)
Closing Deliveries. (i) On Upon the Closing Date, terms and subject to the condition of this Agreement, to consummate the transactions set forth in Section 1.3(d)(iv1.02 and without double-counting any amount transferred at closing pursuant to any Related Agreement, at the Closing:
(a) below subject to any adjustment pursuant to Sections 1.05(c) and in accordance with Section 1.2(a)5.21, the Buyers shall deliver Purchaser shall, on behalf of itself and/or one or cause to be delivered more of its Affiliates, pay to Sellers an aggregate amount in cash equal to $2,000,000,000 (the cash amounts set forth on Schedule I hereto in respect of each Seller, “Purchase Price”) by wire transfer of immediately available funds in the amounts and to such accounts as RiverNorth Capital on behalf of Sellers has specified the account(s) designated by LNC in writing at least two three (23) Business Days prior to the Closing Date Date, with the exact amount of each payment to be determined according to the allocation methodology provided for in Section 5.23 hereof;
(b) Lincoln Life, LAL and Lincoln Barbados shall cede or retrocede to Purchaser (or a Purchaser Affiliate) the Insurance Contracts and Purchaser (or a Purchaser Affiliate) shall reinsure the Insurance Contracts pursuant to the Reinsurance Agreements;
(c) LNC shall deliver to Purchaser (or a Purchaser Affiliate) certificates representing, all the outstanding capital stock of Lincoln Bermuda, Linsco, Old Fort, LRRMS, LNMS, LNRM, LNSS, LNII, Lincoln China and KLRS and (ii) all of the outstanding capital stock of SER owned by LNC, in each case, accompanied by stock powers duly executed in blank or duly executed instruments of transfer;
(d) Lincoln Life shall deliver to Purchaser (or a Purchaser Affiliate) certificates representing all the outstanding capital stock of LNH&C and LNRAC, in each case, accompanied by stock powers duly executed in blank or duly executed instruments of transfer;
(e) LNC and Lincoln Life will transfer to Purchaser (or a Purchaser Affiliate) the Transferred Assets owned by them (including Investment Assets and Transferred Statutory Assets having a value determined pursuant to Section 1.04(d)) by a Xxxx of Sale and General Assignment;
(f) Lincoln Barbados will transfer to Purchaser (or a Purchaser Affiliate) the Transferred Assets owned by it being understood that(including Investment Assets and Transferred Statutory Assets having a value determined pursuant to Section 1.04(e)) by a Xxxx of Sale;
(g) LAL will transfer to Purchaser (or a Purchaser Affiliate) the Transferred Assets owned by it (including Investment Assets and Transferred Statutory Assets having a value determined pursuant to Section 1.04(f)) by a Xxxx of Sale;
(h) LNC, Lincoln Life, LAL and Lincoln Barbados shall transfer to Purchaser (1or a Purchaser Affiliate), and Purchaser (or a Purchaser Affiliate) with respect to Holdingsshall assume, the delivery of a release instruction Assumed Liabilities pursuant to the Escrow Agent LNC and Lincoln Life Assumption of Liabilities and Assignment of Contracts Agreement and the Lincoln Barbados Assumption of Liabilities and Assignment of Contracts Agreement;
(i) To document the transactions set forth in accordance with Section 1.02 and certain related transactions, Sellers shall, and shall cause each applicable Company to, enter into and/or deliver and Purchaser and the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings Purchaser Affiliates shall, as applicable, enter into and deliver:
(2i) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Lincoln Life Coinsurance Agreement;
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Lincoln Life Funds Withheld Coinsurance Agreement;
(iii) On the Lincoln Life Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Coinsurance Agreement;
(iv) Notwithstanding anything in this Agreement to the contrary, unless Lincoln Life Administrative Services Agreement;
(v) the Buyers would not be obligated to purchase Lincoln Barbados Coinsurance Agreement;
(vi) the Purchased Shares by reason of Lincoln Barbados Funds Withheld Coinsurance Agreement;
(vii) the failure of any Closing Condition to be fulfilled as of Lincoln Barbados Modified Coinsurance Agreement;
(viii) the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Lincoln Barbados Coinsurance/Modified Coinsurance Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.;
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Lincoln National Corp)
Closing Deliveries. (i) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)unless otherwise provided, the Buyers Buyer shall deliver deliver, or cause to be delivered, to Sellers, as applicable, the following, dated as of the Closing Date and executed for and on behalf of Buyer by a duly authorized officer thereof:
(1) the Purchase Price, which shall be delivered to Sellers in the cash amounts set forth on Schedule I hereto in respect form of each Seller, by a wire transfer to Seller’s designated account of immediately available funds in an amount equal to such accounts as RiverNorth Capital the Base Price minus the unpaid principal and interest on behalf all of Sellers has specified in writing at least two the Bridge Notes;
(2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, original of each of the delivery of a release instruction to the Escrow Agent Bridge Notes for cancellation in accordance with the terms thereof, together with a termination of the Escrow Agreement shall Security Agreements in accordance with their terms, and any UCC termination statements and other filings relating thereto;
(3) one or more instruments of assumption, in customary form and substance reasonably satisfactory to Buyer and Sellers and their respective counsel;
(4) the certificates and other documents required to be deemed delivered pursuant to satisfy this requirement with respect Section 8.2; and
(5) any and all other instruments, certificates and agreements contemplated by Article VIII or Article IX hereof or as Sellers may reasonably request in order to effectively make Buyer responsible for all Assumed Liabilities pursuant hereto to the Escrow Funds deposited fullest extent permitted by Holdings and applicable law.
(2ii) At the amount of any dividends that the Company has declared with a record date on Closing, Sellers shall deliver, or prior cause to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shallbe delivered, to Buyer the extent the Buyers have not received such dividends following, dated as of the Closing DateDate and executed for and on behalf of Sellers by duly authorized officers thereof:
(1) a xxxx of sale, reduce the aggregate amount payable by the Buyers in customary form and substance reasonably satisfactory to Buyer and Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)and their respective counsel;
(ii2) On one or more instruments of assumption, in customary form and substance reasonably satisfactory to Buyer and Sellers and their respective counsel;
(3) an instrument of assignment of Patents, in customary form and substance reasonably satisfactory to Buyer and Sellers and their respective counsel;
(4) an instrument of assignment of Copyrights, in customary form and substance reasonably satisfactory to Buyer and Sellers and their respective counsel;
(5) an instrument of assignment of Trademarks, in customary form and substance reasonably satisfactory to Buyer and Sellers and their respective counsel;
(6) the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause certificates and other documents required to be delivered pursuant to the Buyers the certificatesSection 8.1; and
(7) any and all other instruments, if any, representing the Purchased Shares, duly certificates and validly endorsed agreements contemplated by Article VIII hereof or accompanied by stock powers duly and validly executed as Buyer may reasonably request in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic order to effectively transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) to Buyer all of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached Assets pursuant hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensfullest extent permitted by applicable law.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Clarient, Inc), Asset Purchase Agreement (Trestle Holdings Inc)
Closing Deliveries. (i) On The parties will take the Closing Dateactions set forth in this Section 6.2 at the Closing, in each case subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), satisfaction or waiver of the Buyers shall deliver or cause to be delivered to Sellers the cash amounts conditions set forth on Schedule I hereto in respect of each Seller, Sections 11 and 12.
(a) Purchaser will deliver to Bayer the consideration described in Section 4.1 by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified the account designated in writing at least two to Purchaser, which account Bayer will designate not fewer than five (25) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified scheduled Closing Date.
(ivb) Notwithstanding anything Bayer will, and will cause its Affiliates who own Acquired Assets to, execute one or more bills of sale, in this Agreement a form reasonably acceptable to Purchaser, with respect to all tangible personal property included in the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition Acquired Assets to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they delivered at Closing.
(c) Bayer will, on the Closing Dateand will cause its Affiliates who own Acquired Assets to, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall execute one or more domain name assignments in a form to be reduced to the amount derived by multiplying each such number mutually agreed by the quotient resulting from the Notice Amount divided by 57,628,750parties.
(d) Bayer, will, and Closing shall proceed will cause its Affiliates to, execute one or more agreements in a form to be mutually agreed to sublicense, in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth , the Biogen Agreement to Purchaser;
(e) Bayer will deliver to Purchaser an exclusive license from seeking Biogen Idec to compel specific performance Purchaser to use the ZEVALIN and ZEVAMAB trademarks in the Territory or, alternatively, if such exclusive license cannot be completed prior to Closing, an exclusive license from Bayer to use such marks pending completion of the terms this Agreement exclusive license from Biogen Idec.
(f) Bayer will, and will cause its Affiliates to, execute one or more assignments in a form to be mutually agreed to license, in accordance with Section 6.4 the terms and conditions of this Agreement, the Business-Specific Licensed IP.
(g) Bayer will, and will cause its Affiliates who own Acquired Assets to, and Purchaser will, execute an instrument of assignment and assumption in form and substance reasonably acceptable to the parties with respect to the Assumed Liabilities, Transferred Contracts, Transferred Permits, and other Acquired Assets and such other instruments as will be reasonably requested by Purchaser to vest in Purchaser title in and to the other Acquired Assets, in accordance with the provisions hereof.
(h) Purchaser and Bayer will, or will cause their respective Affiliates to, as appropriate, execute and deliver to each other the following:
(i) the Transition Services Agreement in substantially the form attached hereto as Exhibit A (the “Transition Services Agreement”);
(ii) the Inventory Agreement in substantially the form attached hereto as Exhibit B (the “Inventory Agreement”);
(iii) the Guaranty of Spectrum Parent in substantially the form attached hereto as Exhibit C (the “Guaranty”);
(iv) the Regulatory Support Agreement in a form to be mutually agreed by the parties (the “Regulatory Support Agreement”); and
(v) the Pharmacovigilance Agreement in a form to be mutually agreed by the parties (the “Pharmacovigilance Agreement”).
(i) The parties will deliver the various certificates, instruments and documents required of each of them under Sections 11 and 12.
Appears in 2 contracts
Samples: License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc), License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Closing Deliveries. At the Founders Closing:
(a) Parent shall:
(i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to OP Buyer, by wire transfer of immediately available funds to the account or accounts designated by OP Buyer in writing at least two (2) business days prior to the Closing Date, the Parent Loan in an amount as provided by Section 2.1;
(ii) contribute, or cause to be contributed, to PH Buyer an amount equal to the PH Consideration Loan Amount as provided in Section 2.6;
(iii) execute and deliver to the Sellers the cash amounts set forth on Schedule I hereto Escrow Agreements;
(iv) deliver to the Company, by wire transfer of immediately available funds, an amount equal to the OP Parent Contribution;
(v) deliver or cause to be delivered to the Sellers written evidence of the OP Buyer Subscription in respect of form and substance reasonably satisfactory to the Sellers;
(vi) cause the OP Buyer to deliver or cause to be delivered to each Seller, by wire transfer of immediately available funds to the account or accounts designated by such accounts as RiverNorth Capital on behalf of Sellers has specified Seller to Parent in writing at least two (2) Business Days business days prior to the Closing Date Date, such Seller’s At Closing OP Purchase Price; and
(it being understood thatvii) subject to the first sentence of Section 6.2, (1) cause the OP Buyer to deposit or cause to be deposited with respect to Holdingseach Seller, by wire transfer of immediately available funds, an amount equal to such Seller’s Escrowed OP Purchase Price, to be held in a separate escrow account (an “Escrow Account”) in accordance with the terms of a separate escrow agreement in a form or forms to be consistent with the provisions of this Agreement and on such other terms as reasonably agreed by the applicable Sellers and Parent (collectively, the delivery of a release instruction “Escrow Agreements”), to be entered into with an escrow agent to be identified by each Seller (and reasonably acceptable to Parent) prior to the Founders Closing (each, the “Escrow Agent Agent”);
(b) OP Buyer shall:
(i) execute and deliver to Parent the Parent Note; and
(ii) to the extent necessary to ensure that PH Buyer has sufficient funds to remit the aggregate PH Consideration pursuant to Section 2.3, deliver to PH Buyer, by wire transfer of immediately available funds, an amount equal to the PH Consideration Loan Amount;
(c) the PH Buyer shall:
(i) deliver to Parent written evidence of the full repayment of the PH Buyer Note in form and substance reasonably satisfactory to Parent;
(ii) deliver to Parent written evidence of the PH Buyer Distribution in form and substance reasonably satisfactory to Parent;
(iii) deliver or cause to be delivered to each Seller, by wire transfer of immediately available funds to the account or accounts designated by such Seller to Parent in writing at least two (2) business days prior to the Closing Date, such Seller’s At Closing PH Purchase Price;
(iv) subject to the first sentence of Section 6.2, deposit or cause to be deposited with respect to each Seller, by wire transfer of immediately available funds, an amount equal to such Seller’s Escrowed PH Purchase Price, to be held in the Escrow Account in accordance with the terms of the Escrow Agreement shall be deemed Agreements; and
(d) the Sellers shall:
(i) deliver to satisfy this requirement OP Buyer a duly executed assignment and assumption agreement or other conveyance document with respect to the Escrow Funds deposited by Holdings Purchased OP Units, in each case, in form and (2) substance reasonably satisfactory to Parent and the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Sellers;
(ii) On the Closing Date, subject deliver to Section 1.3(d)(iv) below, Sellers shall (1) deliver PH Buyer a duly executed assignment and assumption agreement or cause to be delivered other conveyance document with respect to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the BuyersPH Units, in the case of each of (1) and (2)case, in respect of form and substance reasonably satisfactory to Parent and the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Sellers;
(iii) On the Modified Closing Date, (1) deliver to the Buyers shall take any such action as would be required under a duly executed certificate of non-foreign status in the form and manner that complies with Section 1.3(d)(i) in respect 1445 of the Company Shares that Code and the Buyers are obligated Treasury Regulations promulgated thereunder, and in form and substance reasonably satisfactory to purchase on Parent and the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Sellers; and
(iv) Notwithstanding anything in this Agreement to execute and deliver the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofEscrow Agreements.
Appears in 2 contracts
Samples: Founders Agreement, Founders Agreement (Fortress Investment Group LLC)
Closing Deliveries. (i) On the Closing Date, the Company will deliver or cause to be delivered to each Buyer:
(A) the items required to be delivered to Buyer pursuant to Section 8, duly executed by the Company where so required,
(B) certificates representing the applicable Debenture and Warrant,
(C) a certificate ("CLOSING CERTIFICATE") signed by its chief executive officer or chief financial officer (1) representing the truth and accuracy of all the representations and warranties made by the Company contained in this Agreement, as of the applicable Closing Date, as if such representations and warranties were made and given on all such dates, (2) adopting the covenants and conditions set forth in this Agreement in relation to the applicable Debenture and Warrants, (3) representing the timely compliance by the Company with the Company's registration requirements set forth in the Registration Rights Agreement, and (4) certifying that an Event of Default has not occurred,
(D) a legal opinion in substantially the form of Exhibit E attached hereto in relation to the Company, the applicable Debenture, the applicable Warrant and the Transaction Documents ("CLOSING LEGAL OPINION"),
(E) a Debenture with a principal amount equal to such Buyer’s Original Principal Amount, registered in the name of such Buyer,
(F) a Warrant registered in the name of such Buyer to purchase up to a number of shares of Common Stock equal to the Warrant Amount (as defined in Section 1(b)(v)) with an exercise price equal to the Initial Warrant Exercise Price (as defined in Section 1(b)(v)) subject to adjustment therein, and
(G) the Intercreditor Agreement duly executed by the Company and the buyers signatory to the Securities Purchase Agreement, dated as of April 16, 2007, between the Company and such buyers;
(H) Limited Standstill Agreements, in the form of Exhibit F hereto, duly executed by each of the Designated Insiders (as defined in Section 1.3(d)(iv) below and in accordance with Section 1.2(a4(r)). On the Closing Date, the Buyers each Buyer shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto Company the following:
(A) this Securities Purchase Agreement, the Registration Rights Agreement, the Security Agreement and the Intercreditor Agreement duly executed by such Buyer, (B) funds in respect the amount of each Seller, such Buyer’s applicable Purchase Price by wire transfer of immediately available funds to such accounts the account as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensCompany.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (QPC Lasers), Securities Purchase Agreement (QPC Lasers)
Closing Deliveries. At the Closing:
(a) each Founder shall deliver or cause to be delivered:
(i) On to New United, such documents or instruments as may be necessary or that New United may reasonably request in order to effect the Closing Datemerger of each of the Founder Newcos into New United, subject to Section 1.3(d)(iv) below and in accordance with the Founder Newco Merger Agreements and this Agreement, including (if applicable) (A) delivery of certificates representing all of the issued and outstanding limited liability company membership interests of the applicable Founder Newco for cancellation against delivery of the applicable Founder Consideration Shares and (B) evidence of the full and unconditional release of any Liens and Restrictions on the shares of United Common Stock held by each of the Founder Newcos, as set forth in Section 1.2(a2.2(b);
(ii) to Liberty, Liberty Global, New United and each other Founder, duly executed counterparts of the Stockholders Agreement;
(iii) to New United and each other Founder, duly executed counterparts of the Voting Agreement; and
(iv) if such Founder is a Series E Holder, (A) to United, the stock certificate or stock certificates representing all shares of United Series E Preferred Stock held by such Series E Holder for cancellation against delivery of the appropriate number of shares of Surviving Entity Class A Stock, as contemplated by the United/New United Merger Agreement, and (B) to New United and each other Series E Holder, duly executed counterparts of the Exchange Agreement.
(b) Liberty Global shall deliver or cause to be delivered:
(i) to New United, the stock certificate or stock certificates representing the Liberty Global Shares, all duly endorsed in blank or with separate notarized stock powers attached thereto duly executed in blank and otherwise in proper form for transfer with all necessary documentary or transfer tax stamps affixed;
(ii) to New United, Liberty and each Founder, duly executed counterparts of the Stockholders Agreement;
(iii) to New United and Liberty, duly executed counterparts of the Standstill Agreement and the Registration Rights Agreement; and
(iv) to New United and Liberty, duly executed counterparts of the New United Covenant Agreement.
(c) Xxxxxxxxx shall deliver to New United a stock certificate representing one share of United Class A Stock, duly endorsed in blank or with a separate notarized stock power attached thereto duly executed in blank and otherwise in proper form for transfer with all necessary documents or transfer tax stamps affixed. 50
(d) Liberty shall deliver or cause to be delivered:
(i) to New United, (A) the Belmarken Notes or the proceeds thereof, in each case in proper form for transfer, (B) appropriate instruments, duly executed by Liberty Sub, assigning all of Liberty Sub's rights and obligations under the Belmarken Loan Agreements, (C) payment of the Cash Contribution, (D) the Note Shares and (E) the Liberty UPC Bonds and/or the Restructuring Proceeds, in each case in proper form for transfer;
(ii) to New United and LMI, duly executed counterparts of the No Waiver Agreement;
(iii) [Reserved.]
(iv) to New United, Liberty Global and each Founder, duly executed counterparts of the Stockholders' Agreement;
(v) to New United and Liberty Global, duly executed counterparts of the Standstill Agreement and the Registration Rights Agreement;
(vi) to United and Liberty Global, duly executed counterparts of the United/Liberty Agreement;
(vii) to Liberty Global and New United, duly executed counterparts of the New United Covenant Agreement; and
(viii) to UIPI (A) payment of the Note Repayment Amount by delivery of cash, Liberty 2009 Notes or a combination thereof, as provided in Section 2.3 and (B) if applicable, a duly executed counterpart of the Liberty 2009 Notes Registration Rights Agreement.
(e) New United shall deliver or cause to be delivered:
(i) to Liberty Global or the appropriate 4 Contributing Party or Contributing Parties, newly issued stock certificates representing the Liberty Global Consideration Shares;
(ii) to each Founder, newly issued stock certificates representing the Founder Consideration Shares to be issued to such Founder pursuant to Section 2.2(b), registered in the Buyers name of such Founder;
(iii) to Liberty or the appropriate Contributing Party or Contributing Parties, newly issued stock certificates representing the Liberty Consideration Shares and the Liberty Contribution Shares;
(iv) to Liberty, appropriate instruments, duly executed by New United, assuming all of Liberty Sub's obligations under the Belmarken Loan Agreements;
(v) to Liberty and LMI, duly executed counterparts of the No Waiver Agreement;
(vi) to Liberty Global, Liberty and each Founder, duly executed counterparts of the Stockholders Agreement;
(vii) to each Founder, duly executed counterparts of the Voting Agreement;
(viii) to Liberty Global and Liberty, duly executed counterparts of the Standstill Agreement and the Registration Rights Agreement;
(ix) to United, duly executed counterparts 4 of the Certificate of Merger and the Preferred Exchange Agreement;
(x) to each Series E Holder, duly executed counterparts of the Exchange Agreement; and
(xi) to Liberty and Liberty Global, duly executed counterparts of the New United Covenant Agreement.
(f) United shall deliver or cause to be delivered:
(i) to New United, duly executed counterparts of the Certificate of Merger and the Preferred Exchange Agreement; 51
(ii) to Liberty, (A) the $310,000,000 Notes for cancellation against payment of the Note Repayment Amount by delivery of cash, Liberty 2009 Notes or a combination thereof, as provided in Section 2.3, (B) if applicable, a counterpart of the Liberty 2009 Notes Registration Rights Agreement, duly executed by UIPI and United and (C) an appropriate instrument, duly executed by United and by each beneficiary of the Liberty Guaranty, irrevocably releasing Liberty from all of its obligations under the Liberty Guaranty; and
(iii) to Liberty and Liberty Global, duly executed counterparts of the United/Liberty Agreement; and
(iv) to each Series E Holder, newly issued stock certificates representing the shares of Surviving Entity Class A Stock to be issued to such Series E Holder, as contemplated by the United/New United Merger Agreement, registered in the name of such Series E Holder.
(g) LMI shall deliver or cause to be delivered to Sellers New United and Liberty, duly executed counterparts of the No Waiver Agreement.
(h) Each of the parties shall also deliver or cause to be delivered the certificates, opinions and other documents required by Articles VIII, IX, X, XI and XII.
(i) All shares of New United Class C Stock required to be delivered to a Liberty Party shall be represented by newly issued stock certificates registered in the name of the applicable Liberty Party or, at its direction, an Affiliate thereof. All payments of cash amounts set forth on Schedule I hereto in respect of each Seller, to be made to a party or an Affiliate thereof shall be made by wire transfer of immediately available funds to an account or accounts at a domestic bank identified by the applicable party by written notice to the party making or causing to be made such accounts as RiverNorth Capital on behalf of Sellers has specified in writing payment at least two (2) three Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensapplicable Closing.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Restructuring and Merger (Liberty Media Corp /De/), Agreement and Plan of Restructuring and Merger (New Unitedglobalcom Inc)
Closing Deliveries. At the Closing:
(ia) On the Closing DateSellers shall deliver, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shalldelivered, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);Parent or its designees:
(iii) On certificates evidencing the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificatescertificated Blocker Shares, if any, representing the Purchased Sharessuch Blocker Shares are certificated, duly and validly endorsed in blank or accompanied by stock powers duly and validly executed in blankby each Blocker Seller, or (2) instruments of assignment duly executed by each Blocker Seller, in lieu of any such certificates, Sellers may arrange for an appropriate electronic form and substance reasonably acceptable to Parent effecting the transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased uncertificated Blocker Shares to one or more accounts designated Parent held by such Blocker Seller immediately prior to the BuyersClosing;
(ii) evidence, in form and substance reasonably acceptable to Parent, that the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.ECP Equity Transfers have been consummated;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a certification of the Company Shares pursuant to Treasury Regulation Section 1.1445-11T(d)(2), a certification of Blocker II pursuant to Treasury Regulation Section 1.1445-2(c)(3) and either a certification of Blocker I pursuant to Treasury Regulation Section 1.1445-2(c)(3) or certifications of each of the Blocker I Sellers pursuant to Treasury Regulation Section 1.1445-2(b)(2); provided, that Parent’s and Merger Sub’s sole right in the Buyers are obligated event the Sellers fail to purchase on the Modified Closing Date and (2) Sellers shall take cause any such action as would certificate(s) to be delivered pursuant to this clause (ii) shall be to make an appropriate withholding to the extent required under by Section 1.3(d)(ii) in respect 1445 of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Code;
(iv) Notwithstanding anything in this Agreement to the contraryEscrow Agreement, unless the Buyers would not be obligated to purchase the Purchased Shares duly executed by reason each of the failure Sellers and the Company;
(v) certificates of any Closing Condition to be fulfilled good standing of the Sellers and each Acquired Company, or equivalent certificates, each issued as of the Termination Date, if on the day most recent practicable date available prior to the Closing DateDate by the Secretary of State (or equivalent Governmental Entity) of each such entity’s jurisdiction of organization; and
(vi) such other agreements, Buyers provide written notice documents, instruments and writings as are required to RiverNorth that they will, on be delivered by the Sellers at or prior to the Closing Datepursuant to Section 7.02 or as are otherwise reasonably required in connection with this Agreement.
(b) Parent shall make the payments required to be made by it pursuant to Section 2.03(h) and deliver, purchase Company Shares from or cause to be delivered, to the Sellers for an aggregate purchase price of (i) the Escrow Agreement, duly executed by Parent and (ii) such other agreements, documents, instruments and writings as are required to be delivered by Parent at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on or prior to the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject pursuant to the terms and conditions of Section 7.03 or as are otherwise reasonably required in connection with this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement and Agreement and Plan of Merger, Stock Purchase Agreement and Agreement and Plan of Merger (Dynegy Inc.)
Closing Deliveries. (ia) On the Closing DateBuyer shall deliver, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Sellerdelivered, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood thatCompany, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on at or prior to the Closing DateClosing, and which each of the Buyers are entitled to receive under the terms hereinfollowing:
(i) a certificate, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce executed on behalf of Buyer by a duly authorized officer thereof certifying that each of the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)conditions set forth in Section 7.02 has been satisfied;
(ii) On the Closing DateAssignment of Membership Interest, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied executed by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Buyer;
(iii) On the Modified Closing Datea certificate, (1) the Buyers shall take any such action dated as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect executed on behalf of Buyer by a duly authorized officer of Buyer, certifying the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Buyer Organizational Documents;
(iv) Notwithstanding anything in this Agreement a good standing certificate from the State of Delaware with respect to the contraryBuyer, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day dated within fifteen business days prior to the Closing Date; and
(v) the Escrow Agreement, Buyers provide duly executed by Buyer.
(b) The Company, Parent or the Members, as applicable, shall deliver, or cause to be delivered, to Buyer, at or prior to the Closing, each of the following:
(i) a certificate, dated as of the Closing Date and executed on behalf of the Company by a duly authorized officer thereof certifying that each of the conditions set forth in Section 7.03 has been satisfied;
(ii) the Closing Financial Certificate, executed on behalf of the Company by the Chief Financial Officer of the Company;
(iii) the Assignment of Membership Interest, executed by each Member;
(iv) FIRPTA documentation, consisting of a certificate of non-foreign status, prepared in accordance with Treasury Regulations Section 1.1445-2(b), in substantially the form attached hereto as Exhibit C;
(v) written notice resignations, effective as of the Closing, from all offices, positions and boards of Parent or the Company, executed by each director or manager of the Parent or Company, as applicable, in substantially the form attached hereto as Exhibit D;
(vi) a certificate, dated as of the Closing Date and executed on behalf of the Company by a duly authorized officer of the Company, certifying the Company Organizational Documents;
(vii) a certificate, dated as of the Closing Date and executed on behalf of Parent by a duly authorized officer of Parent, certifying the Parent Organizational Documents;
(viii) good standing certificates from the State of Delaware and each other state or jurisdiction in which each of Parent and the Company is qualified to RiverNorth that they willdo business, on dated within fifteen business days prior to the Closing Date;
(ix) payoff letters or similar instruments in form (including customary lien release documentation, purchase if applicable) and substance reasonably satisfactory to Buyer with respect to all Company Shares Debt;
(x) an invoice from Sellers each recipient to which a Transaction Expense is owed (except for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify any recipients who will be paid Transaction Expenses through the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”))Company’s payroll and, for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies except for the obligation payee of the Buyers R&W Policy Premium) indicating the amount of Transaction Expenses payable to purchase the Purchased Shares, subject such recipient as of immediately prior to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance Closing;
(xi) the wire transfer instructions of the terms this Agreement Members for payment of the Closing Cash Consideration, for purposes of a funds flow memorandum in accordance the form attached hereto as Exhibit E (the “Funds Flow”);
(xii) an IRS Form W-9 with Section 6.4 hereofrespect to each Member; and
(xiii) the Escrow Agreement, duly executed by the Members.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (890 5th Avenue Partners, Inc.), Membership Interest Purchase Agreement (890 5th Avenue Partners, Inc.)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) will deliver or cause to be delivered to the Buyers Purchaser:
(i) a xxxx of sale in the certificates, if any, representing form of Exhibit A (the Purchased Shares, “Xxxx of Sale”) duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, Sellers;
(ii) an assignment and assumption agreement in the case form of each of Exhibit B (1the “Assignment and Assumption Agreement”) and (2), in respect of duly executed by the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Sellers;
(iii) On an assignment of all patents and patent applications included in the Modified Closing Date, Purchased Intellectual Property in the form of Exhibit C (1the “Patent Assignment”) duly executed by the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Sellers;
(iv) Notwithstanding anything an assignment of all software included in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares Intellectual Property in the form of Exhibit D (the “Software Assignment”) duly executed by reason of the failure of any Closing Condition to be fulfilled Sellers;
(v) a certificate, dated as of the Termination Closing Date, if on duly executed by the day Sellers confirming the satisfaction of the conditions specified in Sections 6.1(a) and 6.1(b); and
(vi) such other instruments of sale, transfer, conveyance and assignment as the Purchaser reasonably requests for the purpose of consummating the transactions contemplated by this Agreement.
(b) At the Closing, the Purchaser will deliver or cause to be delivered to the Sellers:
(i) the Closing Payment by wire transfer of immediately available funds in U.S. dollars to the account(s) specified by ConvaTec no later than two Business Days prior to the Closing Date;
(ii) the Assignment and Assumption Agreement duly executed by the Purchaser;
(iii) the Xxxx of Sale, Buyers provide written notice to RiverNorth the Patent Assignment and the Software Assignment, if any, that they willcall for a signature by the Purchaser, on duly executed by the Purchaser;
(iv) a certificate, dated as of the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number duly executed by the quotient resulting from Purchaser confirming the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation satisfaction of the Buyers to purchase conditions specified in Sections 6.2(a) and 6.2(b); and
(v) such other instruments of assumption as ConvaTec reasonably requests for the Purchased Shares, subject to purpose of consummating the terms and conditions of transactions contemplated by this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tactile Systems Technology Inc)
Closing Deliveries. (i) On At the Closing, Purchaser shall deliver, or cause to be delivered, to Aradigm the following, dated as of the date of this Agreement and, where relevant, executed for and on behalf of Purchaser by a duly authorized officer thereof:
(1) any and all instruments, certificates and agreements as Aradigm may reasonably request in order to effectively make Purchaser responsible for all Assumed Liabilities pursuant hereto to the fullest extent permitted by applicable law;
(2) Purchaser shall have provided Aradigm with evidence demonstrating that Purchaser has obtained at least $15 million in equity financing;
(3) Purchaser shall have paid to Aradigm, by wire transfer, $4,000,000 in cash;
(4) Purchaser shall have reimbursed Aradigm for all documented expenses actually incurred by Aradigm from July 1, 2006 through the Closing Date, subject that were pre-approved in writing by Purchaser, up to Section 1.3(d)(iv$515,036;
(5) below Each of Xxxxx Xxxx and Xxxx Xxxxxxx shall have provided Aradigm with a release of all claims over or rights to any severance payments relating to their cessation of services to Aradigm, in accordance with Section 1.2(a)a form that is reasonably acceptable to Aradigm and including mutually agreed consideration for such releases; and
(6) the Transitional Services Agreement.
(ii) At the Closing, the Buyers Aradigm shall deliver deliver, or cause to be delivered delivered, to Sellers Purchaser the cash amounts set forth on Schedule I hereto in respect following, dated as of each Seller, by wire transfer the date of immediately available funds to such accounts as RiverNorth Capital this Agreement and executed for and on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, Aradigm by a duly authorized officer thereof:
(1) with respect to Holdings, the delivery a general assignment and xxxx of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement sale with respect to the Escrow Funds deposited by Holdings and Assigned Assets in the form attached hereto as Exhibit F;
(2) the amount one or more instruments of any dividends that the Company has declared with a record date on or prior assignment and assumption, in customary form and substance reasonably satisfactory to the Closing Date, Purchaser and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Aradigm and their respective counsel;
(ii3) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu an instrument of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) assignment of the Purchased Shares to one or more accounts designated by Transferred Patents, the BuyersTransferred Trademarks, and any other Registered Intellectual Property Rights included in the Assigned Assets, in the case of each of customary form and substance reasonably satisfactory to Purchaser and Aradigm and their respective counsel;
(14) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.required third party consents including those consents necessary for the valid assignment and transfer of the Transferred Contracts;
(iii5) On any and all other instruments, certificates and agreements as Purchaser may reasonably request in order to effectively transfer to Purchaser all of the Modified Closing Date, Assigned Assets pursuant hereto and to the Transfer Plan to the fullest extent permitted by applicable law; and
(16) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DateTransitional Services Agreement.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Zogenix Inc), Asset Purchase Agreement (Zogenix Inc)
Closing Deliveries. At or prior to each Closing:
(i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent that RCAP’s Class B Units are certificated, RCAP shall deliver to the Buyers have not received such dividends Corporation certificates representing the number of Class B Units that, collectively, comprise the Operating Subsidiaries Group Units to be Exchanged for Class A Shares as specified in the applicable Exchange Request (or an affidavit of loss in lieu thereof in customary form, but without any requirement to post a bond or furnish any other security), accompanied by unit powers, in form reasonably satisfactory to the corporate secretary of the Closing DateCorporation (the “Transfer Agent”), reduce the aggregate amount payable duly executed in blank by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)RCAP or its duly authorized attorney;
(ii) On RCAP shall deliver to the Closing DateCorporation for cancellation one or more certificates representing a number of Class B Shares equal to the number of Operating Subsidiaries Group Units specified in the applicable Exchange Request, subject to Section 1.3(d)(iv) belowadjustment based on the Exchange Rate in effect at the applicable Closing (or an affidavit of loss in lieu thereof in customary form, Sellers shall (1) deliver but without any requirement to post a bond or cause to be delivered to the Buyers the certificatesfurnish any other security), if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers powers, in form reasonably satisfactory to the Transfer Agent, duly and validly executed in blankblank by RCAP or its duly authorized attorney;
(iii) if applicable, RCAP shall deliver evidence reasonably satisfactory to the Corporation that all Liens on its Operating Subsidiaries Group Units and Class B Shares delivered pursuant to Sections 2.01(e)(i) and 2.01(e)(ii) have been released (other than transfer restrictions imposed by or under applicable securities laws, the LLC Agreements and this Agreement);
(2iv) in lieu if RCAP delivers to the Corporation, pursuant to either Section 2.01(e)(i) or 2.01(e)(ii), a certificate representing a number of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Class B Units or Class B Shares that is greater than the number of the Purchased Operating Subsidiaries Group Units or Class B Shares to one or more accounts designated by the Buyers, specified in the case applicable Exchange Request, the Corporation will deliver (and, if applicable, cause the Operating Subsidiaries to deliver) to RCAP certificates representing the excess Class B Units or Class B Shares, as applicable;
(v) each Operating Subsidiary shall deliver to the Corporation a certificate (or other indicia of each ownership) representing the number of (1) Class A Units of such Operating Subsidiary equal to the number of Class B Units of such Operating Subsidiary that were Exchanged and (2)thereafter automatically converted, in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.13.02(b) and sufficient to convey to the Buyers goodof such Operating Subsidiary’s LLC Agreement, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.into Class B Units; and
(iii) On the Modified Closing Date, (1vi) the Buyers Corporation shall take any such action as would be required under Section 1.3(d)(i) in respect deliver to RCAP a certificate representing the number of the Company Class A Shares that RCAP is entitled to receive for Operating Subsidiaries Group Units in the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DateExchange.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Exchange Agreement (RCS Capital Corp), Exchange Agreement (RCS Capital Corp)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Blackstone Entities shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I NBCU Entities:
(i) duly executed counterparts of the Partners’ Agreement, substantially in the form attached hereto as Exhibit A;
(ii) duly executed counterparts of the Loan Agreement, substantially in respect of each Seller, the forms attached hereto as Exhibits C-1;
(iii) the certificates contemplated by Section 5.2(a)(iii);
(iv) payment by wire transfer of immediately available funds transfer, to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated by NBC Universal in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or no less than three days prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing DateGuarantee Fee; and
(v) all other documents, reduce the aggregate amount payable instruments and writings required to be delivered by the Buyers Blackstone Entities pursuant to Sellers on this Agreement and such other documents, instruments and writings as counsel for the Closing Date; provided, however, no such offset with respect Blackstone Entities and the NBCU Entities mutually agree to dividends shall apply be reasonably necessary to Company Shares not actually purchased by Buyers);consummate the transactions described herein.
(iib) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers the NBCU Entities shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, Blackstone Entities:
(i) duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) counterparts of the Purchased Shares to one or more accounts designated by the BuyersPartners’ Agreement, substantially in the case of each of forms attached hereto as Exhibit A;
(1ii) and (2), in respect counterparts of the Purchased Shares to be purchased on Loan Agreement, as duly executed by XX Xxxxxx, and the Closing Date Guarantee Agreement, as set forth on Schedule I duly executed by NBC Universal, substantially in the forms attached hereto (as it may be amended in accordance with Section 1.1) Exhibits C-1 and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.C-2;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under certificates contemplated by Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.5.3(a)(iii);
(iv) Notwithstanding anything payment by wire transfer, to (A) accounts designated by and (B) in this Agreement to the contraryproportion designated by, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day Blackstone Entities in writing no less than three days prior to the Closing Date, Buyers provide written notice of the Fee Loan; and
(v) all other documents, instruments and writings required to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number delivered by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of NBCU Entities pursuant to this Agreement based on and such modified Schedule I. For other documents, instruments and writings as counsel for the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies Blackstone Entities and the obligation of NBCU Entities mutually agree to be reasonably necessary to consummate the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereoftransactions described herein.
Appears in 2 contracts
Samples: Transaction Agreement (Universal City Travel Partners), Transaction Agreement (Universal City Florida Holding Co. I)
Closing Deliveries. At the Closing, Seller or the Company, as the case may be, shall deliver the following to Purchaser:
(i) On the Closing DateAn Assignment Instrument, subject to Section 1.3(d)(iv) below appropriately filled out and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect duly executed by an authorized representative of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On an officer’s certificate signed by an authorized officer of the Closing Date, subject to Section 1.3(d)(ivManaging Member on behalf of the Company (A) below, Sellers shall certifying that (1) deliver each of the representations and warranties of the Company contained in this Agreement and all other Transaction Documents and Project Contracts is true and correct in all material respects (other than those qualified by a reference to materiality or cause to Material Adverse Effect, which representations and warranties shall be delivered to the Buyers the certificatestrue and correct in all respects, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) the Company has performed and complied in lieu all material respects with all Transaction Documents and Project Documents and obligations in this Agreement and the other Transaction Documents and Project Documents that are required to be performed or complied with by it at or prior to Closing, (3) all required consents and approvals to enter into and perform its obligations under this Agreement, the other Transaction Documents and the Project Documents to which it is a party have been obtained, and (4) no suit, action or other proceeding is pending or to the knowledge of Seller, threatened against the Company by or before any such certificatesGovernmental Authority (or arbitral panel) that could reasonably be expected to have a Material Adverse Effect on the Company or the Project; and (B) attaching true, Sellers may arrange for an appropriate electronic transfer (including through Deposit accurate and Withdrawal at Custodian (“DWAC”)) complete copies of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect organizational documents of the Purchased Shares Company, good standing certificates of the Company in New York, and resolutions of the Company authorizing execution, delivery and performance of this Agreement and the other Transaction Documents to be purchased on which it is a party and the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) transactions contemplated hereby and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.thereby;
(iii) On the Modified Closing Date, an officer’s certificate signed by an authorized officer of Seller (A) certifying that (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect each of the Company Shares that the Buyers are obligated representations and warranties of Seller contained in this Agreement and all other Transaction Documents is true and correct in all material respects (other than those qualified by a reference to purchase on the Modified Closing Date materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects), (2) Sellers shall take any such action as would Seller has performed and complied in all material respects with all agreements and obligations in this Agreement and the other Transaction Documents that are required to be performed or complied with by it at or prior to Closing, (3) all required consents and approvals to enter into and perform its obligations under Section 1.3(d)(iithis Agreement and the other Transaction Documents to which it is a party have been obtained; and (B) in respect attaching true, accurate and complete copies of the Company Shares that Sellers are obligated organizational documents of Seller, a good standing certificate of Seller in New York, and resolutions of Seller authorizing execution, delivery and performance of this Agreement and the other Transaction Documents to sell on which it is a party and the Modified Closing Date.transactions contemplated hereby and thereby;
(iv) Notwithstanding anything if reasonably requested by Purchaser, an estoppel certificate duly executed by PPA Customer stating that the Company is not in this Agreement default under the PPA;
(v) lien releases or other evidence of repayment of any construction and/or vendor financing with respect to the contrary, unless the Buyers would not be obligated Project and release of any Encumbrances referred to purchase the Purchased Shares by reason in clause (i) of the failure of any Closing Condition to be fulfilled as definition of the Termination Dateterm “Permitted Encumbrances”, if on the day prior provided that all amounts due and owing to the Closing Date, Buyers provide written notice to RiverNorth that they will, on Contractor under the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, EPC Contract and Closing shall proceed all Venders have been paid in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereoffull.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Energea Portfolio 4 USA LLC), Membership Interest Purchase Agreement (Energea Portfolio 4 USA LLC)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Sellers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect Purchaser the following (the “Seller Deliverables”):
(i) The duly executed Assignment by the Sellers;
(ii) The duly executed signature page of the Registration Rights Agreement for the Sellers;
(iii) A certificate executed by each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior Seller to the Closing Date (it being understood effect that, (1) with respect to Holdingsexcept as otherwise stated in such certificate, the delivery each of a release instruction to the Escrow Agent such Seller’s representations and warranties in accordance with the terms this Agreement was accurate in all material respects as of the Escrow date of this Agreement shall be deemed to satisfy this requirement with and is accurate in all material respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(iiiv) On The Amended and Restated NP Operating Agreement executed by each member of NP;
(v) The Bogachev Indemnity, executed by Xxxxxxx X. Xxxxxxxx; and
(vi) Such other documents, certifications or evidence of the Closing DateSellers’ authority reasonably requested by the Purchaser or its counsel, subject to Section 1.3(d)(ivas well as such other documents or instruments contemplated by this Agreement.
(b) belowAt the Closing, Sellers the Purchaser shall (1) deliver or cause to be delivered to the Buyers Sellers the certificates, if any, following (the “Purchaser Deliverables”):
(i) A certificate or certificates representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) shares of the Purchased Shares Purchaser Common Stock issuable to one or more accounts designated by the Buyers, in the case of each of (1) and (2Sellers pursuant to Section 2.2(a), in respect provided, however, that the Purchaser’s delivery shall be subject to compliance with NASDAQ notification rules for insider issuances and such time as is necessary for AST to issue such certificate(s);
(ii) The balance of the Purchased Shares Purchase Price in immediately available funds pursuant to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.2.2(b);
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect The duly executed acceptance of the Company Shares that Assignment by the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Purchaser;
(iv) Notwithstanding anything The duly executed signature page of the Registration Rights Agreement for the Purchaser;
(v) A certificate executed by the Purchaser to the effect that, except as otherwise stated in such certificate, each of the Purchaser’s representations and warranties in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled was accurate in all material respects as of the Termination Date, if on the day prior to date of this Agreement and is accurate in all material respects as of the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 ;
(which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced vi) A duly executed counterpart signature page to the amount derived by multiplying each such number NP Operating Agreement for the Purchaser; and
(vii) Such other documents, certifications or evidence of the Purchaser’s authority reasonably requested by the quotient resulting from the Notice Amount divided Sellers or their counsel, as well as such other documents or instruments contemplated by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Magellan Petroleum Corp /De/)
Closing Deliveries. (ia) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Company shall deliver or cause to be delivered to Sellers each Purchaser the cash amounts set forth on Schedule I hereto following:
(i) a Warrant registered in respect the name of each Seller, by wire transfer such Purchaser to purchase up to a number of immediately available funds shares of Common Stock equal to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms 50% of the Escrow Agreement shall be deemed number of shares purchased by such Purchaser, with an exercise price equal to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as 150% of the Closing Date, reduce Price subject to adjustment therein;
(ii) irrevocable instructions to the aggregate amount payable Transfer Agent instructing the Transfer Agent to deliver a certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by the Buyers to Sellers on per share purchase price of $3.01 (the Closing Date“Purchase Price”), registered in the name of such Purchaser; provided, however, no the parties hereto agree that the number of shares issued based on the Purchase Price shall be adjusted at the closing of the spin-off transaction (as described herein) consistent with the number of shares of Parent issued and outstanding on the record date for the spin-off transaction, such offset with respect that a $500,000 investment pursuant to dividends this Agreement shall apply to represent less than 1% of the issued and outstanding shares of Common Stock of the Company Shares not actually purchased by Buyers)on the closing date of the spin-off transaction;
(iiiii) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of the number of shares purchased by such Purchaser, with an exercise price equal to 200% of the Closing Price subject to adjustment therein; and
(iv) the Registration Rights Agreement duly executed by the Company.
(b) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers each Purchaser shall (1) deliver or cause to be delivered to the Buyers the certificatesCompany (or, if anywhere indicated, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Escrow Agent) the following:
(iii) On the Modified Closing Date, (1i) the Buyers shall take any Registration Rights Agreement duly executed by such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing DatePurchaser.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (InB:Biotechnologies, Inc.), Securities Purchase Agreement (InB:Biotechnologies, Inc.)
Closing Deliveries. (i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)At Closing, the Buyers Parties shall perform the following acts and shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Sellerfollowing documents, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement which shall be deemed to satisfy this requirement have concurrently occurred:
(a) the Purchaser shall subscribe the Shares of the Capital Increase, execute a Shareholders’ Meeting of the Company approving such capital increase, substantially in the form provided in Schedule 4.2(a) hereto, and pay the Primary Purchase Price as described in Section 2.2(a) above in immediately available funds, in accordance with respect Section 2.3 above;
(b) the Purchaser shall pay to the Escrow Funds deposited Sellers the Secondary Purchase Price as described in Section 2.2(b) above, in immediately available funds, in accordance with Section 2.3 above;
(c) each of the Sellers shall deliver to the Purchaser a receipt of the portion of the Secondary Purchase Price paid directly to such Sellers, substantially in the form provided in Schedule 4.2(c) hereto;
(d) the Sellers shall transfer the Shares of Sellers to the Purchaser by Holdings executing the relevant transfer orders in the Share Transfer Registry Book (Livro de Registro de Transferência de Ações Nominativas) of the Company, duly signed by the Sellers and shall deliver to the Purchaser a copy of the transfer terms;
(e) the Sellers shall cause the Company to make the relevant annotations in the Share Registry Book (Livro de Registro de Ações Nominativas) of the Company, reflecting the ownership of the Shares by Purchaser and shall deliver to the Purchaser a copy of the relevant annotation;
(f) the Sellers shall deliver to the Purchaser a copy of (1) the relevant transfer order in the Share Transfer Registry Book (Livro de Registro de Transferência de Ações Nominativas) of Rock World, reflecting the transfer of the Shares in Rock World to the Company; and (2) the amount relevant annotations in the Share Registry Book (Livro de Registro de Ações Nominativas) of any dividends that Rock World reflecting the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as ownership of the Closing Date, reduce the aggregate amount payable Shares in Rock World by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Company;
(iig) On the Closing Date, subject to Section 1.3(d)(iv) below, Purchaser and Sellers shall execute the Company Shareholders’ Agreement substantially in the form provided in Schedule 4.2(g) hereto;
(h) the Purchaser and Sellers shall hold and cause to be held pursuant to the Shareholders’ Agreement of the Company (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a Shareholders’ Meeting of the Company Shares that and a Shareholders’ Meeting of Rock World substantially in form of Schedules 4.2(h)(1) and 4.2(h)(2) hereto to (i) approve amendment of the Buyers are obligated to purchase on by-laws of the Modified Closing Date Company and Rock World, respectively; (ii) approve election of the members of the Board of Directors of the Company and Rock World; and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect a Board of Directors’ Meeting of the Company Shares that Sellers are obligated and a Board of Directors’ Meeting of Rock World to sell on approve election of the Modified Closing Date.officers of the Company and Rock World;
(ivi) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason Purchaser and Sellers shall execute a pledge agreement of the failure Pledged Interests, as provided in Section 8.8 below, substantially in the form of any Closing Condition to be fulfilled as Schedule 4.2(i) herein; and
(j) Xxxxxxx and the Company shall execute an employment agreement, substantially in the form of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv4.2(j) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofherein.
Appears in 2 contracts
Samples: Share Purchase Agreement (SFX Entertainment, INC), Share Purchase Agreement (SFX Entertainment, INC)
Closing Deliveries. (i) On At the Closing DateClosing, subject the parties hereto shall deliver or shall cause to Section 1.3(d)(iv) below and be delivered such items as are required to be delivered by them in accordance with Section 1.2(a)the terms of this Agreement, including the Buyers following:
(a) Buyer shall deliver or cause to be delivered to Sellers each Selling Shareholder:
(i) the cash amounts set forth on Schedule I hereto First Installment of the Cash Consideration, in respect of each Seller, an amount determined in accordance with Section 2.1(a) in immediately available funds by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days an account designated prior to the Closing Date in writing by the Selling Shareholders for such purpose;
(it being understood that, (1ii) with respect to Holdings, the delivery of a release instruction to the Escrow Agent Share Consideration as determined in accordance with the terms Section 2.1(b), including true copies of the Escrow Agreement shall be deemed to satisfy this requirement with respect register of members of Buyer evidencing the transfer to the Escrow Funds deposited by Holdings Selling Shareholders and registration in the name of the Selling Shareholders in respect of the Share Consideration; and
(2iii) the amount of any dividends that the Company has declared with a record date on all other documents, instruments and writings required to have been delivered at or prior to the Closing Date, and which the Buyers are entitled Date by Buyer pursuant to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);this Agreement.
(iib) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers Each Selling Shareholder shall (1) deliver or cause to be delivered to Buyer:
(i) updated share registries or share certificates (or local legal equivalent) evidencing the Buyers Offered Shares it owns, duly endorsed in blank, or accompanied by share transfer forms duly executed in blank and with any required stock transfer tax stamps affixed (the certificatescost of which stamps, if any, representing shall be borne by the Purchased SharesSelling Shareholders) and all necessary documents, duly and validly endorsed or accompanied by stock powers duly and validly executed where so required (collectively, the "Company Share Documents"), to enable title in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Offered Shares to one pass fully and effectively into the name of Buyer;
(ii) all other documents, instruments and writings required to have been delivered at or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares prior to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient by such Selling Shareholder pursuant to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.this Agreement; and
(iiic) On the Modified Closing Date, The Company shall deliver or cause to be delivered to Buyer:
(1) the Buyers shall take any such action as would be required under Section 1.3(d)(ii) in respect of each Group Company, the certificates of incorporation, common seal (if it exists), share register and share certificate book (with any unissued share certificates) and all minute books and other statutory books or such equivalent items in the relevant jurisdiction as are kept by the relevant Group Company Shares that or are required by the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect Law of the jurisdiction where such Group Company Shares that Sellers are obligated is incorporated to sell on the Modified Closing Date.be kept by such Group Company; and
(ivii) Notwithstanding anything in this Agreement all other documents, instruments and writings required to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day have been delivered at or prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers Company pursuant to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Share Purchase Agreement (Focus Media Holding LTD), Share Purchase Agreement (Focus Media Holding LTD)
Closing Deliveries. (a) Concurrently with the execution and delivery of this Agreement, the Company shall deliver to Xxxxxx Xxxx & Xxxxxx LLP evidence reasonably satisfactory to Xxxxxx Xxxx & Xxxxxx LLP:
(i) regarding the consummation of the issue and sale of the Series Q Preferred Stock upon the terms and conditions previously disclosed to Xxxxxx Xxxx & Xxxxxx LLP, for proceeds of at least $40.0 million;
(ii) the consummation of the issue and sale of the Exchange Units and the Exchange Shares and the acquisition of the CD&L Securities upon the terms and conditions previously disclosed to Xxxxxx Xxxx & Xxxxxx LLP;
(iii) of the receipt of the consents referred to in Annex VI to this Agreement;
(iv) of the stockholder consent to the issue of the Warrant Shares, the Exchange Warrant Shares and the Exchange Shares.
(b) Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Purchasers:
(i) an executed copy of the Merger Agreement;
(ii) an executed copy of each of the Voting Agreements;
(iii) an executed copy of the opinion of Xxxxxxxxx & Company, Inc. as to the fairness of the merger consideration;
(iv) a copy of each Unit Transaction Document, executed by each party thereto other than the Purchasers; and
(v) a copy of each of the agreements referred to in Section 4(m).
(c) Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Purchasers the legal opinion of Xxxxxx and Xxxxxx P.A., counsel to the Company, addressed to the Purchasers and dated concurrently with this Agreement, in the substantially the form attached hereto as Annex IX to this Agreement.
(d) Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Purchasers a certificate of the Company signed on behalf of the Company by the principal executive officer and by the chief financial or chief accounting officer of the Company, in their capacities as such, dated the date of this Agreement, to the effect that each of such persons has carefully examined this Agreement and each of the other Transaction Documents, and that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement and each of the other Transaction Documents are true and correct;
(ii) no stop order suspending the qualification or exemption from qualification of the Securities shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated;
(iii) since the date of the most recent financial statements included in the SEC Filings, there has been no material adverse change in the condition, financial or otherwise, business, prospects or results of operation of the Company and the Subsidiaries, taken as a whole;
(iv) none of the SEC Filings or any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(v) subsequent to the respective dates as of which information is given in the SEC Filings: (A) neither the Company nor any of the Subsidiaries has incurred up to and including the date of this Agreement, other than in the ordinary course of its business, any material liabilities or obligations, direct or contingent; (B) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (C) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business; (D) there has not been any change in the capital stock (other than pursuant to the Company’s stock option plan or stock purchase plan or the exercise of warrants outstanding on such respective dates and the issuance the Exchange Units, the Exchange Share and the Compensatory Securities) or the short-term or long-term debt of the Company or any of the Subsidiaries (other than the Exchange Units); (E) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not insured; and (F) there is no litigation which is pending or, to the Company’s knowledge, threatened or contemplated against the Company or any of its Affiliates which would, if decided adversely, have a Material Adverse Effect.
(e) Concurrently with the execution and delivery of this Agreement, the Company shall have delivered to the Purchasers a certificate signed on behalf of the Company by the secretary of the Company, in his capacity as such, dated the date of this Agreement, as to:
(i) the absence of any contemplated proceeding for the merger, consolidation, liquidation or dissolution of the Company or any Subsidiary, as the case may be, or the sale of all or substantially all of its assets (other than the merger contemplated by the Merger Agreement);
(ii) the due adoption and full force and effect of the By-laws of the Company (with a copy of the By-laws attached);
(iii) resolutions adopted by the Board of Directors of the Company and/or a committee thereof authorizing the Securities and the consummation of the transactions contemplated by this Agreement and each of the other Transaction Documents (with copies of such resolutions attached); and
(iv) the incumbency, authorization and signatures of those officers of the Company signing this Agreement, each of the other Transaction Documents and/or any certificate delivered in connection therewith.
(f) On the date on which the Closing occurs (the “Closing Date”), (i) subject to the satisfaction (or waiver by a Purchaser) of the conditions to Closing described in Section 1.3(d)(iv) below and 5 of this Agreement, each Purchaser shall pay to the Escrow Agent on or prior to such date the aggregate purchase price for the number of Units set forth opposite such Purchaser’s name on Annex I to this Agreement by wire transfer of immediately available funds in accordance with Section 1.2(a), the Buyers wire instructions provided by the Escrow Agent and (ii) the Company shall deliver or cause to be delivered the Units that such Purchaser is purchasing to Sellers the cash amounts Purchaser (for the account of the Purchaser as the Purchaser shall instruct). Prior to the Closing, Xxxxxxxxx & Company, Inc., as closing agent (in such capacity, the “Closing Agent” ), will contact the contact person for each Purchaser listed on Annex I hereto to confirm (A) that the Closing is to take place, the wire transfer instructions and the closing mechanics set forth on Schedule I hereto in respect herein and (B) the receipt from the Company and each of each Sellerthe Guarantors of duly executed signature pages (as applicable) to the Unit Transaction Documents. The receipt of funds by the Escrow Agent from a Purchaser shall be deemed to be irrevocable instructions from such Purchaser to the Closing Agent that the conditions to the Closing have been satisfied. In accordance with the foregoing, the Closing Agent shall instruct the Escrow Agent to disburse the funds referred to above by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of Company’s written wire instructions on the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to Closing Date. Following the Closing Date, and which the Buyers are entitled Closing Agent shall deliver to receive under the terms herein, shall, each Purchaser duly executed signature pages to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Unit Transaction Documents of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect each of the Company Shares that Sellers are obligated to sell on the Modified Closing DateGuarantors (as applicable).
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Purchase Agreement (Velocity Express Corp), Purchase Agreement (Velocity Express Corp)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) Seller and/or CGI will deliver or cause to be delivered to the Buyers Buyer:
(i) a transition services Agreement by and between the certificates, if any, representing Buyer and CGI (the Purchased Shares“Transition Services Agreement”) in substantially the form of Exhibit F attached hereto;
(ii) a bxxx of sale in substantially the form of Exhibit B attached hereto (the “Bxxx of Sale”), duly executed and validly endorsed or accompanied delivered by stock powers duly the Seller;
(iii) an assignment and validly executed assumption agreement by and between the Buyer and CGI in blank, or substantially the form of Exhibit C attached hereto (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit the “Assignment and Withdrawal at Custodian (“DWACAssumption Agreement”), duly executed and delivered by CGI and applicable Subsidiaries of CGI;
(iv) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) an assignment and (2), assumption and license-back agreement in respect of the Purchased Shares Intellectual Property in substantially the form of Exhibit D attached hereto (the “IP Assignment and License Back Agreement”), duly executed and delivered by the Seller;
(v) a declaration by Rxxxxxx Jxxxx & Associates, Inc. (“RJA”) issued to be purchased CGI and the Seller (with a copy delivered by CGI to the Buyer) that summarizes the marketing process it has run for CGI, in sufficient detail to permit CGI to assess the adequacy of the process and the Seller to consider the commercial reasonableness of a private foreclosure sale to the Buyer, it being understood that such summary shall generally describe (with such redactions as are necessary to comply with the terms of any existing confidentiality agreements), the period(s) during which the marketing process occurred, the number of parties contacted, the number of parties that executed non-disclosure agreements, the number of parties that engaged in diligence, bids received to date and assets bid on (the Closing Date as “RJA Declaration”);
(vi) UCC-3 termination statements terminating all financing statements filed against CGI, except with respect to the Equipment Leases;
(vii) payoff letters and releases (in form and substance reasonably satisfactory to the Buyer) in respect of all debt repayment amounts set forth on Schedule I Section 2.7(a)(vii) of the CGI Disclosure Schedule, and evidence of the release of Encumbrances, if any, associated with such amounts or evidence reasonably satisfactory to the Buyer and IDXG that upon receipt of the applicable payoff amount, the holder of Indebtedness thereof will release such Encumbrances (collectively, the “Payoff Letters”);
(viii) an assignment and assumption agreement by and between the Buyer and CGI in substantially in the form of Exhibit G attached hereto (as it may the “Equipment Lease Assignment and Assumption Agreement”), duly executed and delivered by CGI and/or applicable Subsidiaries of CGI;
(ix) the Consents and Government Authorizations set forth in Schedule 2.7(a)(ix) (collectively, “Closing Consents”), each in form and substance reasonably acceptable to the Buyer;
(x) the Funds Flow, duly executed by Seller and CGI;
(xi) the Excess Consideration Note, duly executed by the Seller;
(xii) affidavits from each of Seller, CGI and Gentris, LLC of non-foreign status, satisfying the requirements of Treasury Regulations Section 1.445-2(b); and
(xiii) a bxxx of sale in substantially the form of Exhibit K attached hereto (the “Company Bxxx of Sale”), duly executed and delivered by CGI and/or applicable Subsidiaries of CGI.
(b) At the Closing, the Buyer will deliver, or cause to be amended delivered, to the Seller or its designee/assignee:
(i) by wire transfer of immediately available funds, the payments required by, and in accordance with, Section 2.8; and
(ii) the Bxxx of Sale, the Company Bxxx of Sale, the Assignment and Assumption Agreement, the IP Assignment and License-Back Agreement, the Transition Services Agreement, the Equipment Lease Assignment and Assumption Agreement, the Excess Consideration Note and the Funds Flow, each duly executed and delivered by the Buyer.
(c) At the Closing, the Buyer will deliver, or cause to be delivered to CGI: the Bxxx of Sale, the Company Bxxx of Sale, the Assignment and Assumption Agreement, the IP Assignment and License-Back Agreement, the Equipment Lease Assignment and Assumption Agreement and the Transition Services Agreement, in each case duly executed and delivered by the Buyer.
(d) At the Closing, the Seller will deliver, or cause to be delivered, to CGI (i) evidence, reasonably satisfactory to CGI, of the release of all Encumbrances held by, or existing in respect of Indebtedness due to the Seller and SVB, and (ii) by wire transfer of immediately available funds, the applicable payment amounts set forth on the Funds Flow in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens2.8.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Secured Creditor Asset Purchase Agreement (Interpace Diagnostics Group, Inc.), Secured Creditor Asset Purchase Agreement (Cancer Genetics, Inc)
Closing Deliveries. On the Closing Date (ior the Call Closing Date, with respect to a Call Closing), the Company will deliver or cause to be delivered to the Escrow Agent, on behalf of each Buyer:
(A) the items required to be delivered to Buyer pursuant to Section 8, duly executed by the Company where so required,
(B) a certificate ("CLOSING CERTIFICATE") signed by its chief executive officer or chief financial officer (1) representing the truth and accuracy of all the representations and warranties made by the Company contained in this Agreement, as of the applicable Closing Date, as if such representations and warranties were made and given on all such dates, (2) adopting the covenants and conditions set forth in this Agreement in relation to the applicable Debenture and Warrants, (3) representing the timely compliance by the Company with the Company's registration requirements set forth in the Registration Rights Agreement, and (4) certifying that an Event of Default has not occurred,
(C) a legal opinion in substantially the form of Exhibit E attached hereto in relation to the Company, the applicable Debenture, the applicable Warrant and the Transaction Documents ("CLOSING LEGAL OPINION"),
(D) a Debenture with a principal amount equal to such Buyer’s Original Principal Amount, registered in the name of such Buyer,
(E) a Warrant registered in the name of such Buyer to purchase up to a number of shares of Common Stock equal to the Warrant Amount (as defined in Section 1(b)(iv)) with an exercise price equal to the Initial Warrant Exercise Price (as defined in Section 1(b)(iv)) subject to adjustment therein,
(F) Limited Standstill Agreements, in the form of Exhibit F hereto, duly executed by each of the Designated Insiders (as defined in Section 4(r));
(G) The Company shall have delivered to such Buyer a true copy of certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(H) The Company shall have delivered to such Buyer a true copy of certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date within five (5) days of the Closing Date.
(I) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Florida as of a date that is five (5) days prior to the Closing Date.
(J) A fully executed Security Agreement and a fully executed Subsidiary Guarantee, in the form of Exhibit C-1 and C-2 hereto, respectively, fully and duly executed by each of the Company, the “guarantors” (as defined in each of such agreements, respectively), and the Buyers. On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers each Buyer shall deliver or cause to be delivered to Sellers the cash amounts set forth Escrow Agent, on Schedule I hereto in respect behalf of the Company, each Seller, of the following:
(A) this Securities Purchase Agreement and the Registration Rights Agreement duly executed by such Buyer,
(B) such Buyer’s Subscription Amount by wire transfer of immediately available funds to such accounts the account as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause offsets for any expenses to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any which such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”Buyer is entitled)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Alternative Construction Company, Inc.), Securities Purchase Agreement (Alternative Construction Company, Inc.)
Closing Deliveries. Administrative Agent shall have ------------------ received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) On a Note payable to the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect order of each SellerBank, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified each in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Datesuch Bank's Commitment, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable duly executed by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Borrower;
(ii) On a Borrower Pledge Agreement duly executed and delivered by Borrower, together with (A) certificates evidencing all of the Closing Dateissued and outstanding Equity of each Subsidiary of Borrower of every class owned by Borrower, subject to Section 1.3(d)(iv) belowand Borrower's percentage of Equity owned therein, Sellers which certificates shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or and (2B) in lieu of any such certificatesfinancing statements as Administrative Agent shall request to evidence and perfect the Liens granted pursuant to such Borrower Pledge Agreement;
(iii) a Subsidiary Pledge Agreement duly executed and delivered by each First Tier Subsidiary, Sellers may arrange for an appropriate electronic transfer together with (including through Deposit and Withdrawal at Custodian (“DWAC”)A) certificates evidencing all of the Purchased Shares to one or more accounts designated by the Buyers, in the case issued and outstanding Equity of each Subsidiary of (1) each such First Tier Subsidiary of every class owned by each such First Tier Subsidiary, and such First Tier Subsidiary's percentage of Equity owned therein, which certificates shall be duly endorsed or accompanied by stock powers executed in blank, and (2), in respect of B) such financing statements as Administrative Agent shall request to evidence and perfect the Purchased Shares Liens granted pursuant to such Subsidiary Pledge Agreement;
(iv) the Mortgages to be purchased executed on the Closing Date as set forth on Schedule I attached hereto pursuant to Section 7.1(a), duly executed and delivered by Borrower and -------------- its Subsidiaries (as it may be amended applicable), together with such other assignments, conveyances, amendments, agreements and other writings, including, without limitation, UCC-1 and UCC-3 financing statements, in accordance form and substance satisfactory to Administrative Agent, creating first and prior Liens in all Borrowing Base Properties;
(v) the Collateral Assignments duly executed by Borrower, together with Section 1.1) such financing statements as Administrative Agent shall request to evidence and sufficient to convey to perfect the Buyers good, valid and marketable title in and Liens granted pursuant to such Purchased SharesCollateral Assignments;
(vi) such financing statements (including, free and clear of any and all Liens.
without limitation, the financing statements referenced in subclauses (ii), -------------- (iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything above) in this Agreement form and substance acceptable to Administrative ----- ---- Agent as Administrative Agent shall specify to fully evidence and perfect all Liens contemplated by the contraryLoan Papers, unless the Buyers would not all of which shall be obligated to purchase the Purchased Shares filed of record in such jurisdictions as Administrative Agent shall require in its sole direction;
(vii) a Subsidiary Guaranty duly executed and delivered by reason each Subsidiary of Borrower (other than Voyager) in favor of Banks;
(viii) a copy of the failure articles or certificate of any incorporation, certificate of limited partnership, articles of organization or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Closing Condition Date (or within such other period as acceptable to be fulfilled Administrative Agent), issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each Credit Party, and accompanied by a certificate of the Secretary or comparable Authorized Officer of each Credit Party that such copy is true, correct and complete on the Closing Date;
(ix) a copy of the bylaws, partnership agreement, regulations, operating agreement or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each Credit Party that such copy is true, correct and complete as of the Termination Closing Date;
(x) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the existence of each Credit Party and to the effect that each Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xi) a certificate of incumbency of all officers of each Credit Party who will be authorized to execute or attest to any Loan Paper, if on the day prior to dated the Closing Date, Buyers provide executed by the Secretary or comparable Authorized Officer of each Credit Party;
(xii) copies of resolutions or comparable authorizations approving the Loan Papers and authorizing the transactions contemplated by this Agreement and the other Loan Papers, duly adopted by the Board of Directors or comparable authority of each Credit Party accompanied by certificates of the Secretary or comparable officer of each Credit Party that such copies are true and correct copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by the bylaws or other charter documents of such Credit Party) by the unanimous written notice consent of the Board of Directors of each Credit Party, and that such resolutions constitute all the resolutions adopted with respect to RiverNorth that they willsuch transactions, on have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Closing Date;
(xiii) an opinion of Xxxxxx & Hanger, L.L.P., special counsel for Borrower, dated the Closing Date, purchase Company Shares from Sellers favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to Administrative Agent;
(xiv) an opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, special Michigan counsel for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on Administrative Agent, dated the Closing Date (such amountDate, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced favorably opining as to the amount derived enforceability of the Mortgages in Michigan and otherwise in form and substance satisfactory to Administrative Agent;
(xv) an opinion of Xxxxxxx Link, Esq., special Indiana counsel for Administrative Agent, dated the Closing Date, favorably opining as to the enforceability of the Mortgages in Indiana and otherwise in form and substance satisfactory to Administrative Agent;
(xvi) a certificate signed by multiplying each such number by an Authorized Officer of Borrower stating that (a) the quotient resulting from the Notice Amount divided by 57,628,750, representations and Closing shall proceed warranties contained in accordance with terms of this Agreement based on such modified Schedule I. For and the avoidance other Loan Papers are true and correct in all respects, (b) no Default or Event of doubtDefault has occurred and is continuing, nothing (c) except as otherwise set forth in the post-closing letter agreement dated as of the date hereof between Borrower, Administrative Agent and the Banks, all conditions set forth in this Section 1.3(d)(iv8.1 and Section 8.2 have been satisfied, and (d) modifies after giving ----------- ----------- effect to the obligation initial Borrowing and the issuance of the Buyers initial Letter of Credit, Borrower and each other Credit Party are Solvent;
(xviii) certificates from Borrower's insurance broker setting forth the insurance maintained by Borrower, stating that such insurance is in full force and effect, that all premiums due have been paid and that such insurance is adequate and complies with the requirements of Section 10.6; and ------------
(xix) a copy of each Hedge Agreement to purchase which Borrower or any other Credit Party is a party accompanied by a certificate executed by an Authorized Officer of Borrower certifying that such copies are accurate and complete and represent the Purchased Shares, subject to the terms complete understanding and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance agreement of the terms this Agreement in accordance with Section 6.4 hereofparties thereto.
Appears in 1 contract
Closing Deliveries. At the Initial Closing and at each Additional Closing (i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyersbut, in the case of each of (1) and (2Additional Closing, only to the extent not delivered at a prior Closing), in the following actions shall take place, all of which shall be deemed to have occurred simultaneously, and no action shall be deemed to have been completed or any document delivered until all such actions have been completed and all required documents delivered, unless waived by the relevant party for whose benefit such action should have been completed or such document should have been delivered:
(a) The Sellers will deliver, or will cause to be delivered, to the Notary:
(i) a (copy of) the duly executed shareholder’s resolution for the Acquired Company with respect to the restriction on the transfer of the Purchased Shares to be purchased on Acquired Company Shares;
(ii) the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) original and sufficient to convey to complete shareholders’ register of the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Acquired Company;
(iii) On for each of EMC Benelux and the Modified Closing DateAcquired Company, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect copies of the Company Shares that duly executed and, to the Buyers are obligated extent required by the Notary, legalized powers of attorney to purchase any notary, candidate-notary, lawyer or employee of Houthoff Buruma Coöperatief U.A. to execute the Notarial Deed on behalf of EMC Benelux and the Modified Closing Date Acquired Company, respectively, in form and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of substance reasonably satisfactory to the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Notary; and
(iv) Notwithstanding anything in this Agreement confirmation that the Purchase Price has been received by the Sellers.
(b) The Sellers will deliver, or will cause to be delivered, to the contraryPurchaser all duly executed instruments and other items which are required by the terms hereof to be delivered at the applicable Closing, unless including:
(i) the Buyers would not be obligated to purchase Xxxx of Sale, duly executed by the Purchased Shares by reason applicable member(s) of the failure Seller Group;
(ii) counterpart of the Assumption of Liabilities Agreement, duly executed by the applicable member(s) of the Seller Group;
(iii) counterpart of the assignment and assumption agreement with respect to the EIC Business IP License, duly executed by EMC and EISI;
(iv) counterpart of each Local Asset Transfer Agreement (unless otherwise specified therein) and other Transfer Documents, duly executed by the applicable member(s) of the Seller Group;
(v) counterpart of the Transition Services Agreement, duly executed by the applicable member(s) of the Seller Group;
(vi) counterparts of the Joint Use & Occupancy Agreements, duly executed by the applicable member(s) of the Seller Group;
(vii) counterparts of the Intellectual Property License Agreements, in each case duly executed by the applicable member(s) of the Seller Group;
(viii) counterpart of the Trademark License Agreement, duly executed by the applicable member(s) of the Seller Group;
(ix) embodiments of all the Transferred Products, including all source code of the Software therein, together with the source code of the prior versions of such Software (to the extent such source code is in the possession of Sellers, their Affiliates or their respective representatives), the Product Proprietary Information and any Closing Condition other support systems, know- how, architecture, schematics, specifications, documentation, data and information to be fulfilled the extent (i) necessary to build and support the Transferred Products or otherwise operate the Business and (ii) used by the Business as of the Termination Datedate hereof or as of the applicable Closing; for each item under this clause (x), if on the day prior solely to the Closing Dateextent it is an Acquired Asset;
(x) counterpart of the Existing Customer Reseller Agreement, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number duly executed by the quotient resulting from applicable member(s) of the Notice Amount divided Seller Group;
(xi) counterpart of the New Business Reseller Agreement, duly executed by 57,628,750the applicable member(s) of the Seller Group;
(xii) counterpart of each Indian Service Agreement, and Closing shall proceed duly executed by the applicable member(s) of the Seller Group;
(xiii) a statement in accordance with terms the requirements of this Agreement based on such modified Schedule I. For the avoidance Treasury Regulation Section 1.1445-2(b)(2) from an officer of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation EMC (and any other member of the Buyers Seller Group that is a “United States person” within the meaning of Section 7701 of the Code and the Treasury regulations thereunder and that is the transferor of any Acquired Asset, as applicable) certifying that such Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Code;
(xiv) a certificate signed by an officer of each Seller as required by Section 6.3(a)(v);
(xv) any releases, lien terminations or instruments of discharge in customary form necessary to purchase effect the Purchased Shares, subject release of (A) all Encumbrances or other security with respect to the terms Acquired Company Shares and conditions (B) all Encumbrances or other security (other than Permitted Encumbrances) with respect to the other Acquired Assets;
(xvi) the Business Records contemplated by Section 1.1(j); and
(xvii) all such other bills of this Agreement. Nothing shall prevent RiverNorth from seeking sale, special or limited warranty deeds, assignments and other instruments of assignment, transfer or conveyance as the Purchaser may reasonably request or as may be otherwise legally necessary to compel specific performance evidence and effect the sale, transfer, assignment, conveyance and delivery of the terms this Agreement Acquired Assets to the Purchaser and to put the Purchaser in accordance with Section 6.4 hereofactual possession or control of the Acquired Assets.
Appears in 1 contract
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Seller shall deliver deliver, or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shalldelivered, to the extent the Buyers have not received such dividends as Buyer each of the Closing Date, reduce following:
(i) the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Purchased Assets;
(ii) On a License Agreement by and between the Closing DateSeller and the Buyer in the form of Exhibit D attached hereto (the “License Agreement”), subject duly executed by the Seller;
(iii) a Services Agreement by and between the Seller and the Buyer in the form of Exhibit E attached hereto (the “Services Agreement”), duly executed by the Seller;
(iv) a Manufacturing Services Agreement by and between the Seller and the Buyer in the form of Exhibit F attached hereto (the “Manufacturing Services Agreement”), duly executed by the Seller;
(v) a Lease Assignment Agreement by and between the Seller and the Buyer relating to Section 1.3(d)(ivthe Seller’s lease (the “Lease”) belowof the premises located at 9000 Xxx Xxxx Xxxxxx, Sellers Xxxxxxxxx, Xxxxxxxx 00000 (the “Premises”) in the form of Exhibit G attached hereto (the “Lease Assignment Agreement”), duly executed by the Seller;
(vi) a General Assignment and Bxxx of Sale in the form of Exhibit H attached hereto (the “Bxxx of Sale”);
(vii) an Assignment and Assumption Agreement in the form of Exhibit I attached hereto (the “Assignment and Assumption Agreement”);
(viii) if applicable, the Qualified Financing Documents, duly executed by the Seller;
(ix) all Permits to the extent transferable;
(x) the certificates required by Sections 9.01 and 9.02; and
(xi) such other documents and instruments as may be reasonably required, in the opinion of Buyer’s counsel, to consummate the transactions contemplated hereby.
(b) At the Closing, the Buyer shall (1) deliver deliver, or cause to be delivered delivered, to the Buyers Seller each of the certificatesfollowing:
(i) the Purchase Price, if anyeither in cash by wire transfer or in the form of Buyer’s Equity represented by certificates issued in such names and denominations as requested by the Seller at least one Business Day before the Closing, representing or some combination of both, as the Purchased SharesSeller so directs pursuant to Section 2.05;
(ii) the License Agreement, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Buyer;
(iii) On the Modified Closing DateServices Agreement, (1) duly executed by the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Buyer;
(iv) Notwithstanding anything the Manufacturing Services Agreement, duly executed by the Buyer;
(v) the Lease Assignment Agreement, duly executed by the Buyer;
(vi) the Operating Expenses, either in this Agreement to cash by wire transfer or in the contrary, unless form of Buyer’s Equity represented by certificates issued in such names and denominations as requested by the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of Seller at least $46,103,000 but less than then $57,628,750 one Business Day before the Closing, or some combination of both, as the Seller so directs pursuant to Section 2.05;
(which notice shall specify vii) the amount Buyers will purchase on Bxxx of Sale;
(viii) the Closing Date Assignment and Assumption Agreement;
(such amountix) if applicable, the “Notice Amount”))Qualified Financing Documents, for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number duly executed by the quotient resulting from Buyer;
(x) the Notice Amount divided certificates required by 57,628,750Sections 8.01 and 8.02; and
(xi) such other documents and instruments as may be reasonably required, and Closing shall proceed in accordance with terms the opinion of this Agreement based on such modified Schedule I. For Seller’s counsel, to consummate the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereoftransactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Human Genome Sciences Inc)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers Buyer the cash amounts set forth on Schedule I hereto in respect following:
(i) resignations of the directors (or equivalent) of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms member of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited Company Group specified by Holdings and Buyer from his or her position as director (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Dateequivalent), and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends effective as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Closing;
(ii) On the certificates referred to in Sections 7.3(a) and 7.3(b);
(iii) a copy of the Escrow Agreement duly executed by the Escrow Agent, the Company and the Seller Representative;
(iv) evidence reasonably satisfactory to Buyer of the termination and full and complete settlement of, without any Liability of the Surviving Company Group after the Closing, the agreements set forth under the heading “Affiliate Agreements” in Section 4.13(a) of the Disclosure Schedule; and
(v) all other documents required to be delivered by the Company or the Seller Representative to Buyer at the Closing Datepursuant to this Agreement.
(b) At the Closing, subject to Section 1.3(d)(iv) below, Sellers Buyer shall (1) deliver or cause to be delivered the following:
(i) the Preliminary Merger Consideration in immediately available funds to the Buyers Seller Representative as provided in Section 3.5;
(ii) the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed certificates referred to in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1Sections 7.2(a) and (27.2(b), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a copy of the Company Shares that Escrow Agreement duly executed by the Buyers are obligated Escrow Agent and Buyer and the Escrow Funds in immediately available funds to purchase on the Modified Closing Date and (2) Sellers shall take any such action Escrow Agent as would be required under provided in Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.3.3; and
(iv) Notwithstanding anything in this Agreement all other documents required to be delivered by Buyer and Merger Sub to the contraryCompany and Seller Representative at the Closing pursuant to this Agreement.
(c) At the Closing, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition Company shall deliver or cause to be fulfilled delivered to: (i) the Seller Representative, or such other party as of may be directed by the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amountSeller Representative, the “Notice Amount”Seller Allocable Expenses in immediately available funds as provided in Section 3.4 and (ii) the Buyer an affidavit by an authorized officer stating under penalties of perjury, that the Company is not and has not been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period described in Code Section 897(c)(1)(A)(ii)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Samples: Merger Agreement (Pq Corp)
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers County shall deliver deliver, or cause to be delivered delivered, to Sellers the cash amounts set forth on Schedule I Buyer each of the following:
(i) the Purchased Assets;
(ii) a General Assignment and Bxxx of Sale in substantially the form of Exhibit B attached hereto (the “Bxxx of Sale”), duly executed by the County;
(iii) a Deed for the Owned Real Property in substantially the form of Exhibit C attached hereto (the “Deed”)
(iv) an Assignment and Assumption Agreement in substantially the form of Exhibit D attached hereto (the “Assignment and Assumption Agreement”), duly executed by the County;
(v) a confirmatory amendment to the Franchise Agreement acknowledging the Closing and the transfer of the Purchased Assets, and the resultant extension of the Franchise and the Franchise Area to include the Service Area, all as contemplated in the Franchise Agreement and the Letter of Intent;
(vi) all original certificates of title, manufacturer’s statements of origin, bills of sale or other similar title documents for the Plant and Equipment that are in the possession of the County, duly endorsed for transfer, providedthat if the County shall be unable to deliver to the Buyer any original certificate of title, manufacturer’s statement of origin, bxxx of sale or other similar title document in respect of each Sellerany Plant and Equipment included in the Purchased Assets, by wire transfer the County will deliver a bxxx of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior sale or similar title document to the Closing Date (it being understood thatBuyer, (1) in form and substance satisfactory to the Buyer in its sole discretion, with respect to Holdingseach such item of Plant and Equipment or cooperate with the Buyer’s reasonable requests to obtain any replacement certificate of title or similar title document;
(vii) all Permits listed on Schedule 2.1(f), to the extent transferable;
(viii) all Required Consents (as defined below in Section 8.4), to be obtained or made by the County;
(ix) a correct and complete list of the Customers of the County as of the Closing Date;
(x) the certificates required by Sections 9.1 and 9.2;
(xi) a certificate evidencing the approval by the Commissioners of the County of the execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby;
(xii) such other documents and instruments as may be reasonably necessary to effect the intent of this Agreement and consummate the transactions contemplated hereby.
(b) At the Closing, the Buyer shall deliver, or cause to be delivered, each of the following:
(i) the Bxxx of Sale duly executed by the Buyer;
(ii) if the Buyer is to pay any amounts pursuant to Section 2.4(b) of this Agreement, the NAV Note, duly executed by the Buyer;
(iii) the Assignment and Assumption Agreement duly executed by the Buyer;
(iv) the certificates required by Sections 8.1 and 8.2;
(v) a certificate signed by the Secretary or Assistant Secretary of the Buyer certifying the truth and correctness of attached copies of the certificate of incorporation and bylaws, and that the board of directors of the Buyer has approved the execution, delivery of this Agreement, the Transaction Documents to which it is a release instruction to party and the Escrow Agent in accordance with the terms consummation of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and transactions contemplated hereby; and
(2vi) the amount a certificate, dated as of any dividends that the Company has declared with a record date on or no earlier than three days prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable duly issued by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, applicable Governmental Authority in the case State of each of (1) and (2)Delaware, in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares showing that the Buyers are obligated Buyer is in good standing and authorized to purchase on the Modified Closing Date and (2) Sellers shall take any do business in such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Datejurisdiction.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. (i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers The Buyer shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing have received at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the ------------------- Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as each of the Closing Datefollowing documents:
(a) a xxxx of sale substantially in the form attached hereto as Exhibit A, reduce the aggregate amount payable executed by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Seller;
(iib) On the Closing Datesuch instruments of conveyance, subject to Section 1.3(d)(iv) belowassignment and transfer, Sellers shall (1) deliver or cause to be delivered to the Buyers the and motor vehicle transfers and safety inspection certificates, if any, representing in form and substance satisfactory to the Purchased SharesBuyer, duly as shall be appropriate to convey, transfer and validly endorsed assign to, and to vest in, the Buyer, good and marketable title to the Assets other than the Intangible Property;
(c) such instruments of conveyance, assignment and transfer in form and substance satisfactory to the Buyer and in a form appropriate to file, if required, with the United States Office of Patents and Trademarks, sufficient to convey, transfer and assign to, and to vest in, the Buyer, good and marketable title to the Intangible Property;
(d) all technical data, formulations, product literature and other documentation relating to the Seller's business, all in form and substance satisfactory to the Buyer;
(e) such contracts, files and other data and documents pertaining to the Assets or accompanied by stock powers duly and validly executed in blank, or the Business as the Buyer may reasonably request;
(2f) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) copies of the Purchased Shares general ledgers and books of account of the Seller related to one or more accounts designated the Business, and all federal, state, local and foreign income, franchise, capital, property and other tax returns filed by the BuyersSeller with respect to the Assets since June 30, in the case of each of 1997.
(1g) and (2), in respect such certificates of the Purchased Shares Seller's officers and such other documents evidencing satisfaction of the conditions specified in this Section 8 as the Buyer shall reasonably request;
(h) certificate of the Secretary of the Seller attesting to be purchased on the Closing Date as incumbency of the Seller's officers, respectively, and the authenticity of the resolutions authorizing the transactions contemplated by the Agreement;
(i) estoppel certificates from each lessor under the Leases set forth on in Schedule I 2.9(b) attached hereto (as it may be amended in accordance with Section 1.1i) and sufficient to convey consenting to the Buyers goodassignment of such Lease to the Buyer; (ii) representing that there are no outstanding claims against the Seller under any such Lease, valid and marketable title in and to such Purchased Sharesno outstanding defaults or events which, free and clear with the passage of any and all Liens.
time, may become defaults; (iii) On specifying the Modified Closing Date, (1) commencement and termination dates under the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date Lease; and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything providing that any purchase right, purchase option, right of first refusal, renewal right or other similar provision is enforceable by the Buyer and specifying the rental rates under the Lease and any other matters that Buyer may reasonably require;
(j) the originals, if in this Agreement Seller's possession, of all building permits, certificates of occupancy, and other governmental licenses, permits and approvals, and all plans and specifications relating to the contrary, unless Leased Premises not previously delivered to the Buyers would not be obligated to purchase Buyer;
(k) the Purchased Shares Employment Agreement executed by reason the Shareholder;
(l) the Opinion of Seller's Counsel;
(m) the Amendment of the failure Certificate of any Closing Condition to be fulfilled as Incorporation of the Termination Date, if on Seller to discontinue the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation use of the Buyers name "The Xxxxx Group, Inc." and to purchase file any instruments as may be necessary with any governmental authority to change their corporate names and foreign qualifications; and
(n) such other documents, instruments or certificates as the Purchased Shares, subject Buyer may reasonably request in order to evidence the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance accuracy of the terms this Agreement in accordance Selling Parties' representations or compliance by Seller with Section 6.4 hereofits covenants hereunder.
Appears in 1 contract
Closing Deliveries. (ia) On the Closing DateAt Closing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Seller shall deliver, the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);delivered:
(iii) On to Purchaser, certificates evidencing the Closing DateTransferred Shares duly endorsed in blank, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or in form satisfactory to the Purchaser;
(2ii) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) a copy of the Purchased Shares to one or more accounts designated by the Buyers, in the case Certificate of each of (1) and (2), in respect Incorporation of the Purchased Shares to be purchased on Company in effect as of the Closing Date Effective Time, accompanied by a certificate of an executive officer of the Company, dated as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to of the Buyers gooddate hereof, valid and marketable title in and stating that no amendments have been made to such Purchased Shares, free and clear Certificate of any and all Liens.Incorporation since such date;
(iii) On written evidence of consent, as required as obtained by Company, from any lessors of real property and from other third parties prior to or in connection with the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect consummation of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.transactions contemplated by this Agreement;
(iv) Notwithstanding anything the written release of all Encumbrances (if any), other than Permitted Encumbrances, relating to the assets and properties of the Company and the Transferred Shares, executed by the holder of or parties to each such Encumbrance, in form and substance satisfactory to Purchaser;
(v) the certificate referred to in Section 6.1;
(vi) certified true copies of resolutions of the board of directors or similar governing body of the Company, and the resolutions of the shareholders of the Company, authorizing and approving this Agreement and the transactions contemplated hereby;
(viii) such other documents as may be reasonably required to transfer good title to the contraryShares and to enable Purchaser to become the registered holder thereof; and
(b) At Closing, unless Purchaser shall deliver, or cause to be delivered, to Seller:
(i) the Buyers would not be obligated to purchase cancelled Prior Note;
(ii) a true and complete copy, certified by the Purchased Shares by reason Secretary of the failure of any Closing Condition to be fulfilled as Purchaser, of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number resolutions duly and validly adopted by the quotient resulting from Board of Directors of the Notice Amount divided by 57,628,750, Purchaser evidencing its authorization of the execution and Closing shall proceed in accordance with terms delivery of this Agreement based on such modified Schedule I. For and the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies agreements related thereto and the obligation consummation of the Buyers transactions contemplated hereby and thereby; and
(iii) the certificate referred to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof6.2.
Appears in 1 contract
Closing Deliveries. The purchase and sale of the Special Warrants shall be completed at the Closing Time on the Closing Date electronically. At or prior to the Closing Time the Company shall deliver to the Agent:
(i) On the Closing Dateopinions, subject certificates and agreements referred to in Section 1.3(d)(iv8 and all other documents required to be provided by the Company to the Agent pursuant to this Agreement;
(ii) below other than in respect of Direct Settlers, certificates representing the Special Warrants registered in the name of “CDS & Co.” or any Purchaser or in such other name or names as the Agent may direct. Notwithstanding the foregoing, if the Agent and the Company determine to issue any of the Special Warrants to Purchasers who are not Direct Settlers as book-entry only securities in accordance with Section 1.2(a)the “non-certificated inventory” rules and procedures of CDS, then as an alternative or in addition to the Company delivering one or more definitive certificates representing such Special Warrants, the Buyers Agent will provide a direction to CDS with respect to the crediting of the Special Warrants to the accounts of participants of CDS as shall deliver be designated by the Agent in writing in sufficient time prior to the Closing Date to permit such crediting;
(iii) the Company’s receipt for payment by the Agent of an amount equal to the aggregate purchase price for the Special Warrants sold to Purchasers who are not Direct Settlers pursuant to the Offering less an amount equal to the Commission, Advisory Fee and the costs and expenses of the Agent provided for in Section 13;
(iv) such further documentation as may be contemplated by this Agreement or cause as counsel to be delivered to Sellers the cash amounts set forth on Schedule I hereto Agent or the applicable regulatory authorities may reasonably require;
(v) other than in respect of each SellerDirect Settlers, all duly completed Subscription Agreements tendered by the Purchasers for the Special Warrants being issued and sold and, where applicable, all completed forms, schedules and certificates contemplated by the Subscription Agreements;
(vi) payment by way of wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior an amount equal to the Closing Date (it being understood thataggregate purchase price for the Special Warrants sold to Purchasers who are not Direct Settlers pursuant to the Offering, (1) with respect less an amount equal to Holdingsthe Commission, the delivery Advisory Fee and the costs and expenses of the Agent provided for in Section 13; and
(vii) a release instruction receipt signed by the Agent for the Commission, the Advisory Fee and the costs and expenses of the Agent provided for in Section 13 and the Special Warrants delivered to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof7.
Appears in 1 contract
Samples: Agency Agreement
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver or cause to be delivered to Sellers each Investor the cash amounts following:
(i) one or more stock certificates (or copies thereof provided by the Transfer Agent), containing the restrictive and other legends provided in Sections 6.1(b) and 6.1(c) hereof, evidencing such number of Common Shares set forth opposite such Investor’s name on Schedule I Exhibit A hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to heading “Common Shares,” registered in the extent the Buyers have not received name of such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Investor;
(ii) On a Warrant, issued in the Closing Datename of such Investor, subject pursuant to Section 1.3(d)(ivwhich such Investor shall have the right to acquire such number of Warrant Shares set forth opposite such Investor’s name on Exhibit A hereto under the heading “Warrant Shares”;
(iii) belowa legal opinion of Company Counsel, Sellers in the form of Exhibit D-1, executed by such counsel and delivered to the Investors;
(iv) a legal opinion of Hylands Law Firm, PRC counsel for the Company, in the form of Exhibit D-2, executed by such counsel and delivered to the Investors; and
(v) a legal opinion of Bxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx, Hong Kong counsel for the Company, in the form of Exhibit D-3, executed by such counsel and delivered to the Investors.
(b) At the Closing, each Participating Shareholder shall deliver a certificate or certificates representing the number of Affiliate Shares set forth opposite such Participating Shareholder’s name on Schedule B hereto, together with stock powers (1or the equivalent) duly executed in blank, together with such other documents as may be required to transfer to Investors good and marketable title to such Affiliate Shares free and clear of all Liens, against payment of the relevant purchase price therefor as described herein.
(c) At the Closing, each Investor shall deliver or cause to be delivered to the Buyers Company the certificatespurchase price set forth opposite such Investor’s name on Exhibit A hereto under the heading “Purchase Price” in United States dollars and in immediately available funds, if any, representing by wire transfer to an account designated in writing to such Investor by the Purchased Shares, duly and validly endorsed or accompanied Company for such purpose.
(d) The Company shall pay to each Participating Shareholders the portion of the purchase price for the Affiliate Shares sold by stock powers duly and validly executed in blank, or such Participating Shareholder within two (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Business Days of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensClosing.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. (i) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Xxxxxx shall deliver or cause to be delivered (and, as applicable, cause Made to Sellers deliver) to Buyer and Parent the cash amounts set forth on Schedule I hereto following:
(A) a certificate, dated the Closing Date, in respect form and substance reasonably satisfactory to Buyer, signed by the secretary of each SellerMade, by wire transfer attaching thereto copies of immediately available funds to the following documents and certifying, as applicable, that (x) such accounts as RiverNorth Capital copies are complete and correct copies of such documents, (y) such documents are in full force and effect, and (z) such documents have not been amended, modified, or rescinded (and that the amendment, modification, or rescinding of such documents has not been authorized):
i. Made’s Organizational Documents;
ii. the requisite written consent, or minutes of the meeting, of Made’s managing member or other governing body authorizing the execution and delivery of this Agreement and the Ancillary Documents, and the performance of the transactions contemplated hereby and thereby, on behalf of Sellers has specified in writing at least two (2) Business Days prior to Made; and
iii. the Closing Date (it being understood thatrequisite written consent, or minutes of the meeting, of Made’s required equityholders (1) with respect to Holdings, authorizing the execution and delivery of a release instruction to this Agreement and the Escrow Agent in accordance with Ancillary Documents, and the terms performance of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings transactions contemplated hereby and thereby, on behalf of Made and (2) declaring the amount execution and delivery of any dividends this Agreement and the Ancillary Documents, and the performance of the transactions contemplated hereby and thereby, on behalf of Made to be advisable and in the best interest of Made and the Made’s equityholders;
(B) a certificate of good standing of Made, issued as of a date that is no more than five (5) Business Days before the Company has declared with Closing Date from the Secretary of State of Massachusetts;
(C) a record date on or prior to certificate executed by an officer of Made, dated the Closing Date, stating that the preconditions specified in Section 8.2(a), (b) and which the Buyers are entitled (g), as they relate to receive under the terms hereinMade, shallhave been satisfied;
(D) a certificate executed by Xxxxxx, to the extent the Buyers have not received such dividends as of dated the Closing Date, reduce stating that the aggregate amount payable preconditions specified in Section 8.2(a), (b) and (g), as they relate to Xxxxxx, have been satisfied;
(E) an assignment of the Made Closing Membership Interests, duly executed by Xxxxxx, in the Buyers form attached hereto as Exhibit E;
(F) the Registration Rights Agreement, duly executed by Xxxxxx;
(G) an Employment Agreement, duly executed by Xxxxxx;
(H) the Lock-Up Agreement, duly executed by Xxxxxx;
(I) the Underwriter Lock-Up Agreement, duly executed by Xxxxxx;
(J) the Books and Records of Made; it being understood that Xxxxxx shall be entitled to Sellers on retain one copy of such Books and Records;
(K) a certificate meeting the Closing Date; requirements of Treasury Regulations Section 1.1445-2(b)(2), certifying that Xxxxxx is not a foreign Person within the meaning of Sections 1445 and 897 of the Code (each such certificate, a “FIRPTA Certificate”), provided, however, no such offset that, notwithstanding anything to the contrary in this Agreement, if the Buyer does not obtain a FIRPTA Certificate from Xxxxxx, the Buyer shall be entitled to proceed with respect the Closing and withhold from the portion of the Purchase Price otherwise payable to dividends shall apply Xxxxxx that has not delivered a FIRPTA Certificate the appropriate amounts required to Company Shares not actually purchased by Buyers)be withheld pursuant to Section 1445 of the Code;
(iiL) On payoff letters and lien releases regarding the Closing Date, subject Made Indebtedness to be repaid pursuant to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (22.5(b)(iii)(I), each in respect form and substance reasonably satisfactory to Parent; (M) draft interim financial statements of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers goodMade through September 30, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.2013; and
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SFX Entertainment, INC)
Closing Deliveries. (a) At the Closing:
(i) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Corporation shall deliver to the Investors one or cause to be delivered to Sellers more certificates representing the cash Purchased Shares and the Warrants, free and clear of all Liens, registered in the name of the Investors (or as directed in writing by the Investors) in the Corporation’s records, in the amounts set forth next to such Investor’s name on Schedule I hereto in respect D hereto; and
(ii) each of each Seller, the Investors shall pay to the Corporation (or as it may otherwise direct) its respective portion of the Purchase Price by bank draft or wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two funds.
(2b) Business Days prior to At the Closing Date (it being understood that, (1) with respect to HoldingsClosing, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement Corporation shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) also deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) Investors each of the Purchased Shares to one or more accounts designated following, together with such other documents as the Investors may reasonably require:
(i) a certificate of compliance issued by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on Industry Canada dated the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey respect to the Buyers goodlegal existence and good standing of the Corporation under the laws of Canada and a similar certificate for each Material Subsidiary dated not more then three Business Days prior to the Closing Date issued by the appropriate authorities with respect to its legal existence and good standing under the laws of its respective jurisdiction;
(ii) a certificate of the Corporation’s President or another authorized officer of the Corporation, valid not in his personal capacity, dated as of the Closing Date, in form reasonably satisfactory to the Investors, certifying: (A) an attached true and marketable title in complete copy of the Corporation’s articles of incorporation together with all amendments thereto; (B) an attached true and complete copy of the Corporation’s current by-laws; (C) an attached true and complete copy of the resolutions of the Corporation’s board of directors and, if necessary, shareholders, respectively, with respect to such Purchased Shares, free the transactions hereby contemplated or otherwise to be effected at the Closing; and clear (D) the incumbency of any and all Liens.the Corporation’s officers;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a certificate of the Company Shares Corporation’s President or another authorized officer of the Corporation, not in his personal capacity, in a form reasonably satisfactory to the Investors, certifying for and on behalf of the Corporation that the Buyers are obligated to purchase on the Modified Closing Date Corporation has complied with all covenants and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect satisfied all terms and conditions of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition on its part to be fulfilled as of the Termination Date, if on the day complied with or satisfied at or prior to the Time of Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price including, without limitation, each of at least $46,103,000 but less than then $57,628,750 those specified in Section 2.5 below;
(which notice shall specify the amount Buyers will purchase on iv) a written legal opinion of Osler, Hxxxxx & Harcourt LLP dated the Closing Date and substantially in the form attached hereto as Exhibit D; and
(such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(ivv) modifies the obligation payment of the Buyers to purchase amounts then due under the Purchased Shares, subject to the terms Fee Letter and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with under Section 6.4 hereof8.1.
Appears in 1 contract
Samples: Convertible Preferred Share Subscription Agreement (Mitel Networks Corp)
Closing Deliveries. (a) On or prior to the Closing, the Company shall issue, deliver or cause to be delivered to each Purchaser the following (the “Company Deliverables”):
(i) On this Agreement, duly executed by the Company;
(ii) a facsimile copy of the Stock Certificate, free and clear of all restrictive legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit D-2 hereto, with the original Stock Certificate delivered within three (3) Trading Days of Closing; provided, however that the receipt of such facsimile shall be conditioned on the Company receiving a completed Stock Certificate Questionnaire from such Purchaser no later than one (1) Business Day prior to the Closing Date.
(iii) (A) a facsimile copy of the Series A Warrant, executed by the Company and registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit D-2 hereto, pursuant to which such Purchaser shall have the right to acquire such number of Series A Warrant Shares equal to twenty-five percent (25%) of the number of Shares issuable to such Purchaser pursuant to Section 2.2(a)(ii), rounded down to the nearest whole Share, on the terms set forth therein, with the original Series A Warrant delivered within three (3) Trading Days of Closing; provided, however that the receipt of such facsimile shall be conditioned on the Company receiving a completed Stock Certificate Questionnaire from such Purchaser no later than one (1) Business Day prior to the Closing Date and (B) a facsimile copy of the Series B Warrant, executed by the Company and registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit D-2 hereto, pursuant to which such Purchaser shall have the right to acquire such number of Series B Warrant Shares equal to twenty-five percent (25%) of the number of Shares issuable to such Purchaser pursuant to Section 2.2(a)(ii), rounded down to the nearest whole Share, on the terms set forth therein, with the original Series B Warrant delivered within three (3) Trading Days of Closing; provided, however that the receipt of such facsimile shall be conditioned on the Company receiving a completed Stock Certificate Questionnaire from such Purchaser no later than one (1) Business Day prior to the Closing Date .
(iv) a legal opinion of Company Counsel, dated as of the Closing Date and in the form attached hereto as Exhibit E, executed by such counsel and addressed to the Purchasers and the Placement Agent;
(v) the Registration Rights Agreement, duly executed by the Company;
(vi) duly executed instructions to the Transfer Agent instructing the Transfer Agent to (a) deliver, on an expedited basis, a certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by the Purchase Price, rounded down to the nearest whole Share, registered in the name of such Purchaser and (b) establish a reserve of shares of Common Stock to be issued upon the exercise of the Warrants in accordance with their terms;
(vii) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date, subject (a) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (b) certifying the current versions of the certificate of incorporation, as amended, and by-laws of the Company and (c) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in the form attached hereto as Exhibit G;
(viii) the Compliance Certificate referred to in Section 1.3(d)(iv5.1(i);
(ix) below a Lock-Up Agreement, substantially in the form of Exhibit J hereto (the “Lock-Up Agreement”) executed by each person listed on Exhibit K hereto, and each such Lock-Up Agreement shall be in accordance with Section 1.2(a)full force and effect on the Closing Date;
(x) a certificate evidencing the good standing of the Company issued by the Secretary of State of the State of Delaware, as of a date within three (3) Business Days of the Buyers Closing Date;
(xi) a certificate of existence and authorization issued by the Secretary of State of the State of Arizona, as of a date within three (3) Business Days of the Closing Date; and
(xii) a certified copy of the certificate of incorporation, as certified by the Secretary of State (or comparable office) of Delaware, as of a date within three (3) Business Days of the Closing Date.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Datefollowing (the “Purchaser Deliverables”):
(i) this Agreement, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received duly executed by such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Purchaser;
(ii) On the Closing Dateits Subscription Amount, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly in United States dollars and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyersimmediately available funds, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased amount set forth below such Purchaser’s name on the Closing Date applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer to the Escrow Account, as set forth on Schedule Exhibit I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.hereto;
(iii) On the Modified Closing DateRegistration Rights Agreement, (1) the Buyers shall take any duly executed by such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Purchaser;
(iv) Notwithstanding anything a fully completed and duly executed Selling Stockholder Questionnaire in this Agreement the form attached as Annex B to the contraryRegistration Rights Agreement; and
(v) a fully completed and duly executed Accredited Investor Questionnaire, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior satisfactory to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750Company, and Closing shall proceed Stock Certificate Questionnaire in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubtforms attached hereto as Exhibits D-1 and D-2, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofrespectively.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Standard Energy Corp.)
Closing Deliveries. (a) On or prior to the Closing, the Company shall issue, deliver or cause to be delivered
(i) On this Agreement, duly executed by the Company;
(ii) unless otherwise agreed to by the Company and a Purchaser (as to itself only), facsimile copies of one or more stock certificates, free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto (the “Stock Certificates”), with the original Stock Certificates delivered within three Trading Days of the Closing;
(iii) unless otherwise agreed to by the Company and a Purchaser (as to itself only), facsimile copies of one or more Warrants, executed by the Company and registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto, pursuant to which such Purchaser shall have the right to acquire such number of Warrant Shares equal to the number of Shares issuable to such Purchaser pursuant to Section 2.2(a)(ii) (provided, however, that in the event any Purchasers are Affiliates of each other, all Shares purchased by such Purchasers shall be aggregated together for the purpose of determining the aggregate number of Warrant Shares subject to all Warrants purchased by such Purchasers), on the terms set forth therein, with the original Warrants delivered within three Trading Days of the Closing;
(iv) a legal opinion of Company Counsel, dated as of the Closing Date and in substantially the form attached hereto as Exhibit D, executed by such counsel and addressed to the Purchasers and the Placement Agent;
(v) the Registration Rights Agreement, duly executed by the Company;
(vi) the Company’s executive officers, directors and certain Affiliates shall have entered into the Voting Agreement in substantially the form attached hereto as Exhibit K (the “Voting Agreement”);
(vii) duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate evidencing a number of Shares equal to such Purchaser’s Purchase Price, registered in the name of such Purchaser;
(viii) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date, subject certifying (a) the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (b) the current versions of the certificate of incorporation, as amended, and by-laws of the Company and (c) as to Section 1.3(d)(ivthe signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in the form attached hereto as Exhibit F;
(ix) below a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or Chief Financial Officer, certifying to the fulfillment of the conditions specified in accordance with Section 1.2(a)Sections 5.1(a) and (b) in the form attached hereto as Exhibit G;
(x) a Lock-Up Agreement, substantially in the Buyers form of Exhibit I hereto (the “Lock-Up Agreement”) executed by each person listed on Exhibit J hereto, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date;
(xi) a certificate evidencing the formation and good standing of the Company issued by the State of Delaware as of a date within five days of the Closing Date;
(xii) a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the jurisdictions where the Company is qualified to do business as a foreign corporation as of a date within five days of the Closing Date; and
(xiii) a certified copy of the certificate of incorporation of the Company, as certified by the State of Delaware, as of a date within 10 days of the Closing Date.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each SellerCompany the following, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdingssuch Purchaser:
(i) this Agreement, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited duly executed by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)Purchaser;
(ii) its Purchase Price, in United States dollars and in immediately available funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on the applicable signature page hereto by wire transfer to the Escrow Account, as set forth on Exhibit H attached hereto;
(iii) the Registration Rights Agreement, duly executed by such Purchaser;
(iv) a fully completed and duly executed Selling Stockholder Questionnaire in the form attached as Annex B to the Registration Rights Agreement; and
(v) a fully completed and duly executed Accredited Investor Questionnaire, satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as Exhibits C-1 and C-2, respectively.
(c) On or prior to the Closing DateClosing, subject to Section 1.3(d)(iv) below, Sellers the Company shall (1) deliver or cause to be delivered to each of the Buyers affiliated funds of Sanderling Venture Partners and Alafi Capital Company (the certificates“Guarantors”) party to certain Second Amended and Restated Unconditional Guaranties (the “Guaranties”), if any, representing releases from such Guaranties by Silicon Valley Bank the Purchased extent of their respective investments in the Shares, duly and validly endorsed provided that each such Guarantor shall deliver replacement guaranties (or accompanied by stock powers duly and validly executed in blank, or (2reaffirmations) in lieu form reasonably acceptable to Silicon Valley Bank for the unreleased portions of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensguaranties.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Stereotaxis, Inc.)
Closing Deliveries. At the Closing, the following shall occur:
(ia) On each Maintenance Seller and each Energy Seller shall deliver to Buyer certificates representing the Closing DateMaintenance Shares or the Energy Shares, subject as applicable, duly endorsed in blank or accompanied by powers of attorney duly endorsed in blank in proper form for transfer, with appropriate transfer stamps, if any, affixed, or, if any such certificate cannot be located, the applicable Seller shall deliver to Section 1.3(d)(ivBuyer an affidavit of loss for such certificate (which shall include a customary indemnity but shall not include the requirement to post a bond);
(b) below and Buyer shall deliver the Reserve Amounts to the Sellers’ Representative;
(c) Buyer shall deliver the Aggregate Escrow Amount to the Escrow Agent;
(d) Buyer shall deliver the cash amounts payable in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, 2.4 by wire transfer of immediately available funds to bank accounts using instructions delivered to Buyer by each Seller prior to the Closing;
(e) Buyer shall pay, by wire transfer of immediately available funds, (i) in accordance with wire instructions provided by each payee thereof or (ii) with respect to Transaction Expenses required to be paid to employees of a Group Company or any Subsidiary of a Group Company, via the applicable payroll of such accounts as RiverNorth Capital Group Company or Subsidiary, on behalf of the applicable Group Company or Subsidiary, the Transaction Expenses of each Group Company or Subsidiary of such Group Company that are due and payable at the Closing and (if not previously paid) the Prorated Portion of the annual bonus to be paid at or prior to the Closing to the Specified Persons as contemplated by Schedule 6.1 (and such amounts, to the extent not paid prior to the Closing, will constitute a Transaction Expense and will be paid pursuant to Section 2.5(e)(ii)); provided, in the case of such Prorated Portions, that the Group Companies shall have prepared a payroll run for such amounts prior to the Closing Date;
(f) Buyer shall repay, or cause to be repaid, the Funded Indebtedness by wire transfer of immediately available funds in accordance with wire transfer instructions set forth in payoff letters with respect to the Funded Indebtedness provided to Buyer by the Sellers has specified in writing at least two (2) not fewer than three Business Days prior to the Closing Date (it being understood thatwhich such payoff letters shall (i) be in form and substance reasonably satisfactory to Buyer and (ii) include the payoff amount of such Funded Indebtedness and shall provide that Encumbrances, (1) with respect to Holdingsif any, granted in connection therewith shall, upon the delivery of a release instruction to the Escrow Agent in accordance with the terms payment of the Escrow Agreement amount set forth therein at the Closing, be released and terminated);
(g) each Seller, Buyer and the Sellers’ Representative shall deliver to each other executed copies of each of the Transaction Documents and such other documents as are contemplated to be deemed delivered by such Person pursuant to satisfy this requirement Article VIII and Article IX;
(h) each Seller shall deliver to Buyer reasonable evidence of the termination of all Related Party Transactions to which such Seller is a party (excluding those listed on Schedule 2.5(h)) and all obligations and liabilities of the Group Companies and their Subsidiaries thereunder;
(i) the Group Companies shall deliver to Buyer a final invoice with respect to the Escrow Funds deposited by Holdings Engagement Letter, dated February 5, 2021, between the Group Companies and Sxxxxx, Xxxxxxxx & Company, Incorporated (2) which shall be in full satisfaction of all amounts payable thereunder, but shall not affect the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive Group Companies’ obligations under the terms herein, shall, to the extent the Buyers have not received indemnification provisions of such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing DateEngagement Letter); provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);and
(iij) On the Closing Date, subject each Seller shall deliver to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, Buyer a duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensIRS Form W-9.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. (ia) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers PGIO shall deliver or cause to be delivered to Sellers IMS cash in an amount equal to $282,849,900. -7- <PAGE>
(b) At the cash amounts set forth on Schedule I hereto Closing, IMS shall deliver or cause to be delivered to PGIO: (i) an instrument of sale, assignment or contribution in respect a form reasonably satisfactory to PGIO transferring to PGIO all of each SellerIMS and its Affiliates' right, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified title and interest in writing at least two (2) Business Days prior and to the Closing Date (it being understood thatPurchased Assets, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited executed by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing DateIMS; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On such other bills of sale, endorsements, assignments and other instruments of transfer, conveyance and assignment (in a form reasonably satisfactory to PGIO) as shall be required by Law or necessary in the Closing Datereasonable judgment of PGIO to transfer, subject convey and assign the Purchased Assets to Section 1.3(d)(ivPGIO, executed by IMS; (iii) belowthe Guarantee, Sellers in a form reasonably acceptable to PGIO, under which IMA guarantees all of the obligations of IMS hereunder, under the Contributed Note and under the Contribution Agreement, and all of IMS's and Unipath's respective obligations under the Unipath Purchase Agreement, executed by IMA; and (iv) the Share Transfer Agreement, executed by Xxxxxx.
(c) At the Closing, PGIO shall (1) deliver or cause to be delivered to the Buyers Company: (i) the certificatesPGIO Contribution Agreement, if anyexecuted by PGIO; (ii) such bills of sale, representing the Purchased Sharesendorsements, duly assignments and validly endorsed or accompanied by stock powers duly other instruments of transfer, conveyance and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyersassignment, in each case in substantially the case of each of same form as those delivered pursuant to Section 2.2(b) but substituting (1x) the Company for PGIO and (2)y) PGIO for IMS and with such other conforming changes as PGIO and IMS shall mutually agree, in respect of executed by PGIO; and (iii) the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers goodShare Transfer Agreement, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensexecuted by PGIO.
(iiid) On At the Modified Closing DateClosing, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition deliver or cause to be fulfilled as of delivered to PGIO the Termination DatePGIO Contribution Agreement, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number executed by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofCompany.
Appears in 1 contract
Samples: Asset Purchase Agreement
Closing Deliveries. (ia) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Selling Shareholders shall deliver or cause to be delivered to Sellers Buyer:
(i) a certificate signed by the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms Secretary of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing DateCompany, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce certifying as to (A) the aggregate amount payable full force and effect of the Organizational Documents of the Company attached to such certificate as an exhibit and (B) the accuracy and full force and effect of the resolutions adopted by Selling Shareholders regarding this Agreement and the Buyers Transactions to Sellers on which the Closing Date; providedCompany is a party that are attached as an exhibit to such certificate, however, no such offset with respect which resolutions shall be in form and substance reasonably satisfactory to dividends shall apply to Company Shares not actually purchased by Buyers)Buyer;
(ii) On true, complete and correct copies of the Closing Date, subject to Section 1.3(d)(ivresolutions adopted by Selling Shareholders terminating the Company’s 401(k) below, Sellers shall plan effective upon a date no later than one (1) deliver or cause to be delivered day prior to the Buyers Closing, together with any other applicable 11671355.13 documentation reasonably satisfactory to the certificatesBuyer evidencing the termination of such plan, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) evidence of the Purchased Shares provision of requisite notice of each such termination to one or more accounts designated service providers, trustees and participants, as applicable, of such 401(k) plan, certified by the Buyers, in the case of each of (1) and (2), in respect Secretary of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.Company;
(iii) On the Modified Closing Dateresignations of each of the trustees of the Company’s 401(k) plan, effective upon a date no later than one (1) day prior to the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Closing;
(iv) Notwithstanding anything in this Agreement to a certificate of good standing for the contrary, unless Company issued by the Buyers would not be obligated to purchase the Purchased Shares by reason Ohio Secretary of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day State no earlier than ten (10) days prior to the Closing Date;
(v) the certificates representing the Shares, Buyers provide written notice duly endorsed for transfer to RiverNorth Buyer or accompanied by duly executed stock powers evidencing their transfer to Buyer;
(vi) the resignations of each of officers of the Company, effective as of the Closing;
(vii) the Xxxxxxx Employment Agreement, duly executed by Xxxxxxx X. Xxxxxxx;
(viii) each Management Employment Agreement, duly executed by the individual that they willis a party thereto;
(ix) each of the New Real Estate Leases, duly executed by RMPS;
(x) a termination of the Close Corporation Agreement, duly executed by each Selling Shareholder and the Company in a form reasonably acceptable to Buyer;
(xi) the corporate record books and stock record books of the Company;
(xii) evidence of the full payment, satisfaction and discharge or release of all Funded Indebtedness of the Company (other than those obligations set forth on Schedule 3.1(a)(xii) which will remain obligations of the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify following the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)Closing), for purposes including payoff letters from the applicable lenders or lessors and releases, or agreements by such lenders or lessors to release, any Encumbrances on any of this Section 1.3the Shares or any of the assets or properties of the Company related to such Funded Indebtedness, each amount on Schedule I hereto shall be reduced in a form reasonably acceptable to the amount derived by multiplying Buyer and duly executed;
(xiii) a subordination, non-disturbance and attornment agreement in respect of each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers New Real Estate Leases, each in a form reasonably acceptable to purchase Buyer and duly executed;
(xiv) a certificate from each Selling Shareholder certifying that, pursuant to Treasury Regulation Section 1.1445-2(b), such Selling Shareholder is not a foreign person within the Purchased Shares, subject to the terms and conditions meaning of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance Section 1445 of the terms this Agreement Code and in accordance with the form provided in Treasury Regulation Section 6.4 hereof.1.1445-2(b)(2)(iv)(A);
Appears in 1 contract
Closing Deliveries. The Seller must have delivered (ior caused to be delivered) On to the Purchaser each of the following:
(a) such bills of sale, assignments, releases, consents to assignments and other instruments of sale, conveyance, assignment, assumption and transfer satisfactory in form and in substance to the Purchaser as may be reasonably requested by the Purchaser in order to convey to the Purchaser all of the Seller’s rights, title and interests in and to the Assets and to assign to the Purchaser all of the Assumed Liabilities in the manner provided for in this Agreement (collectively, the “Conveyance Agreements”), substantially in the form of Exhibit D;
(b) certificates (dated the Closing Date, subject to Section 1.3(d)(iv) below Date and in accordance with Section 1.2(aform and substance reasonably satisfactory to the Purchaser), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital executed on behalf of Sellers has specified in writing at least two (2) Business Days prior the Seller, certifying as to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms fulfillment of the Escrow Agreement shall be deemed to satisfy this requirement with respect to conditions set forth in Section 5.1, substantially in the Escrow Funds deposited by Holdings and form of Exhibit F attached hereto;
(2c) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as certificate of the Closing DateSecretary of Seller substantially in the form of Exhibit E;
(d) (intentionally left blank)
(e) executed originals of assignments for each real property lease used in the operation of the Business (each, reduce a “Lease”), in substantially the aggregate amount payable by the Buyers to Sellers on the Closing Date; providedform attached hereto as Exhibit G (each, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyersa “Lease Assignment”);
(iif) On receipts for the Closing Date, subject Cash Purchase Price paid to Section 1.3(d)(ivSeller at the Closing;
(g) below, Sellers shall (1) deliver or cause to be delivered to all non-oral Business Information in the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) possession of the Purchased Shares to one Seller or more accounts designated any of their Related Persons (over whom they have control), agents or representatives;
(h) originals of the employment agreements of Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, executed by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensthem respectively.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. At the Closing:
(a) NextWave shall (i) On the Closing Datedeliver all right, subject to Section 1.3(d)(iv) below title and in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title interest in and to such Purchased Shares100% of the Company Interests, free and clear of any encumbrances whatsoever and with no restrictions on the rights and other incidents of record and beneficial ownership pertaining thereto (other than any restrictions pursuant to applicable law or, upon a Closing pursuant to an exercise of the Call Option, any encumbrances permitted under the Note Exchange Agreement), to the Noteholders, pro rata in accordance with the Amount Owing under the Notes held by each such Noteholder as of such date (the “Call Date Note Amount”), subject to adjustment pursuant to Section 2.5 below, and (ii) deliver to the Noteholders written assignments, in form and substance reasonably satisfactory to the Required Noteholders, of any and all Liens.rights that NextWave or any of its affiliates holds pertaining to its ownership of the Company Interests being purchased at the Closing, to the extent necessary to vest all such rights in the Noteholders and to cause each of the Noteholders to become a Company Member; and
(iii) On the Modified Closing Date, (1b) the Buyers Noteholders shall take (i) if the Call Option is exercised pursuant to Section 2.2(a), deliver the Call Exercise Cash Payment to NextWave by means of each Noteholder delivering its pro rata share of the Call Exercise Cash Payment, subject to adjustment pursuant to Section 2.5 below, to NextWave, and (ii) each deliver a written joinder to the Operating Agreement. Notwithstanding the foregoing, if any Noteholder materially breaches any agreement of such action as would Noteholder (a “Breaching Noteholder”) in the Note Exchange Agreement or the Intercreditor Agreement, other than a failure to fund the Call Exercise Cash Payment, if applicable, and such breach has not been remedied prior to the later of (i) ten (10) business days after notice thereof from any Noteholder or the Noteholder Representative and (ii) the expiration of any applicable notice and cure period set forth in the relevant agreement, such Breaching Noteholder shall be required under Section 1.3(d)(i) entitled to receive equity distributions in respect of the Company Shares that Interests only in an amount up to the Buyers are obligated Call Date Note Amount of such Breaching Noteholder and upon receipt of the Call Date Note Amount of such Breaching Noteholder, such Breaching Noteholder shall automatically forfeit (x) all voting rights in respect of its Company Interests, and such Company Interests will no longer be used in any respect in the calculation of Required Members, (y) any right to purchase on designate a member of the Modified Closing Date Board of Directors, with any such member of the Board of Directors to be replaced by designation of the Required Members, if applicable, and (2z) Sellers shall take all rights to receive any such action further distributions as would be required under Section 1.3(d)(ii) a Company Member or in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason assets of the failure of any Closing Condition to be fulfilled as Company in excess of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Call Date Note Amount of such Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofMember.
Appears in 1 contract
Samples: Call Option/Note Redemption Agreement (NextWave Wireless Inc.)
Closing Deliveries. (ia) On the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)At Closing, the Buyers shall take the following actions:
(i) Each of the Buyers shall execute and deliver or cause to be delivered Sellers each of the Related Agreements to which it is party.
(ii) XCel shall execute and deliver to Sellers the cash amounts set forth JR Employment Agreement.
(iii) JRL shall procure and have in place a binding commitment from an insurance provider for (A) key man insurance on Schedule I hereto in respect the life of JR, for an amount equal to Twelve Million United States Dollars ($12,000,000) and (B) disability insurance for JR, with JR as beneficiary, for an amount equal to Four Million United States Dollars ($4,000,000).
(iv) The Buyers shall deliver to Sellers certified copies of the resolutions of each SellerBuyer authorizing the execution, delivery and performance of this Agreement and the Related Agreements (as applicable) and the consummation of the transactions provided for herein and therein.
(v) The Buyers shall deliver the Purchase Consideration to JR, JR Creations, JR Companies, JR Designs and JSB, as specified in Section 3.3, provided, however that the certificates representing the Initial Shares shall be delivered on JR’s behalf directly to QVC.
(b) At Closing, the Sellers shall take the following actions:
(i) Each of the Sellers shall execute and deliver to the Buyers each of the Related Agreements to which it is party.
(ii) JR shall execute and deliver to the Buyers the JR Employment Agreement.
(iii) Sellers shall deliver to Buyers evidence of the termination of the Seller QVC Agreement.
(iv) Sellers shall deliver to Buyers payoff letters, in form and substance satisfactory to Buyers, from Rxxxxxxxx & Rxxxxxxxx, Inc., which provide that upon receipt of the funds specified therein all Liens held by wire transfer such Person on the Acquired Assets shall be automatically released.
(v) Sellers shall deliver to Buyer evidence that all Liens on the Acquired Assets held by HSBC Bank USA, National Association, have been released.
(vi) Sellers shall deliver to Buyers a release, in form and substance satisfactory to Buyers, from each of immediately available funds Pranda Jewelry PCL and Thai Jewelry Manufacturer Co., Ltd., releasing Sellers and their Affiliates from all Liabilities in consideration for and contingent upon the assignment by JR of a Promissory Note to such accounts as RiverNorth Capital on behalf of Person.
(vii) Sellers has specified in writing at least two (2) Business Days prior shall deliver to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms Buyers certified copies of the Escrow Agreement shall be deemed to satisfy this requirement with respect to resolutions of the Escrow Funds deposited by Holdings and (2) Sellers, other than JR, authorizing the amount of any dividends that the Company has declared with a record date on or prior to the Closing Dateexecution, delivery, and which performance of this Agreement and the Related Agreements (as applicable) by the Sellers and the consummation of the transactions provided for herein and therein.
(viii) Sellers shall deliver to Buyers are entitled a receipt for the Purchase Consideration.
(ix) Each Seller shall deliver to receive under the terms herein, shall, to the extent the Buyers have not received such dividends a non-foreign affidavit dated as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly sworn under penalty of perjury and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), form required under treasury regulations issued pursuant to Code §1445 stating that no Seller is a foreign person as defined in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensCode §1445.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2x) Sellers shall take any such action as would be required under Section 1.3(d)(ii) deliver to Buyers all files, documents, or instruments in respect the possession of Sellers or their Affiliates necessary to the preservation and maintenance of the Company Shares that Sellers are obligated to sell on the Modified Closing DateSeller Intellectual Property Rights.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. (i) On the Merger Closing Date, subject each of the parties shall make, execute, acknowledge and deliver the legal documents and other items to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection herewith (collectively, the “Closing Documents”). The Closing Documents and other items to be delivered at the Merger Closing shall be the following:
(a) the WvF Parties shall have provided evidence reasonably satisfactory to the Company that it has complied in all respects with its obligations set forth in Sections 1(aa) through (cc) in the July 3rd Agreement, including, without limitation, with respect to back-stop guarantees contemplated therein, if necessary, from WvF 712 LP;
(b) the Company, on the one hand, and the WvF Parties, on the other hand, shall provide to the other a copy of all appropriate corporate resolutions or partnership or limited liability company actions, as applicable, authorizing the execution, delivery and performance by the Company and Merger Sub (if so requested by the WvF Parties) and the WvF Parties (if so requested by the Company) of this Agreement, the Closing Documents and any related documents, certified by a duly authorized officer;
(c) the Company, on the one hand, and the WvF Parties, on the other hand shall, provide to the other a certification of a duly authorized officer of (or, with respect to the WvF Parties, on behalf of) each such entity certifying that the conditions specified in Section 1.3(d)(iv2.01 (c)(1) below and in accordance with Section 1.2(a(ii) and 2.01(b)(i) and (ii), the Buyers respectively, have been satisfied; and
(d) USREHAG shall deliver deliver, or cause to be delivered delivered, the Estimated 1633 Transfer Tax Amount to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, Company by (i) bank wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified an account designated by the Company in writing a written notice to USREHAG delivered at least two (2) Business Days prior to the Merger Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On such other method as is agreed upon by USREHAG and the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all LiensCompany.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Closing Deliveries. (ia) On At the Closing DateClosing, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a), the Buyers Buyer shall deliver (or cause to be delivered delivered) the following:
(i) Buyer shall deliver Three Million Five Hundred Thousand Dollars ($3,500,000) (the “Escrow Amount”) by wire transfer of immediately available funds to Sellers an account designated in writing by Xxxxx Fargo Bank, National Association (the cash amounts set forth on Schedule I “Escrow Agent”) pursuant to the terms of that certain Escrow Agreement in the form of Exhibit B attached hereto in respect of each Seller(the “Escrow Agreement”);
(ii) Buyer shall deliver to Sellers’ Representative an amount equal to (A) the Estimated Closing Cash Purchase Price, minus (B) the Escrow Amount, by wire transfer of immediately available funds to such accounts an account designated in writing by Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share);
(iii) Buyer shall deliver: (w) to the Optionholders the Option Cancellation Amounts, as RiverNorth Capital applicable; (x) to the lenders’ thereof, the Closing Indebtedness, as applicable; and (y) to the Persons identified by the Company, the Sellers’ Expenses, as applicable, in each case of (w), (x), and (y), as set forth on the flow of funds memorandum executed by Buyer (“Flow of Funds”);
(iv) Buyer shall deliver executed subscription agreements (the “Buyer Exchange Documents”) in the form of Exhibit C attached hereto, issuing the Exchanged Equity to the Stockholders;
(v) An executed certificate of the Secretary (or other executive officer) of the Buyer certifying: (w) that the charter and organizational documents of the Buyer (which are to be attached to the certificate) are true and correct as of the Closing Date; (x) the names and signatures of the officers authorized to sign this Agreement and the other documents to be delivered in connection therewith on behalf of Sellers the Buyer, and (y) the resolutions of the board of directors of the Buyer authorizing the transactions contemplated under this Agreement (the “Buyer’s Secretary Certificate”);
(vi) Fully executed employment agreements with each of Xxxxxx XxXxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxx, in the form of Exhibit D attached hereto (the “Employment Agreements”);
(vii) An amended and restated lease agreement for the property located at 000 Xxxxxxxx Xxxxx, Raleigh, North Carolina 27615 (the “Headquarters Property”) in the form of Exhibit E attached hereto (the “Headquarters Property Lease”); and
(viii) The Escrow Agreement duly executed by the Buyer.
(b) Prior to or at the Closing, the Stockholders shall deliver (or cause to be delivered) to Buyer the following items:
(i) Stock certificates representing the Shares, accompanied with assignments separate from certificate (or other instruments of transfer), duly endorsed in blank and otherwise in the proper form for transfer;
(ii) Payoff letters and releases of all Liens (other than Permitted Liens) on all of the assets and properties of the Company, including all required UCC-3 termination statements or other evidences of discharge reasonably satisfactory to Buyer;
(iii) Evidence reasonably acceptable to Buyer (including invoices and estimates, as applicable) of the balances for all items composing Sellers’ Expenses and Closing Indebtedness;
(iv) Evidence reasonably acceptable to Buyer of the termination of all Contracts between the Company and any (A) Affiliate of the Company or any Selling Party (except as set forth on Schedule 2.02(b)(iv)), and (B) broker, finder or agent related to, or entered into in connection with, the transactions contemplated hereunder;
(v) The Employment Agreements executed by the Persons identified in Section 2.02(a)(viii) above;
(vi) Option Cancellation Agreements duly executed by the Optionholders and the Company;
(vii) Executed resignations for such officers and directors of the Company for which Buyer has specified requested, in writing at least two (2) Business Days prior to each case, effective as of the Closing Date Date;
(it being understood that, viii) The Escrow Agreement duly executed by the Sellers’ Representative;
(1ix) with respect to Holdings, The Buyer Exchange Documents executed by the delivery of a release instruction to the Escrow Agent in accordance with the terms Stockholders;
(x) Certificates from each of the Escrow Agreement shall be deemed to satisfy this requirement with respect to Stockholders, stating that such Stockholder is not a “foreign person” as defined in Section 1445 of the Escrow Code, and otherwise meeting the requirements of Section 1.445-2(b) of the Treasury Regulations;
(xi) The Flow of Funds deposited duly executed by Holdings and the Sellers’ Representative;
(2xii) the amount A fully executed Headquarters Property Lease;
(xiii) Certificates of any dividends standing showing that the Company has declared with a record date on is duly incorporated, validly existing and in good standing in the state of its incorporation and that the Company is duly qualified to do business in each state in which the nature of its business or prior the ownership of its property requires it to be qualified as of the Closing Date;
(xiv) An executed certificate of the trustee for the Trust Stockholder, certifying: (w) that the charter and organizational or trust documents, as the case may be, of the Trust Stockholder (which the Buyers are entitled to receive under the terms herein, shall, be attached to the extent the Buyers have not received such dividends certificate) are true and correct as of the Closing Date, reduce (x) the aggregate amount payable by names and signatures of the Buyers trustee or other individuals authorized to Sellers sign this Agreement and the other documents to be delivered in connection therewith on behalf of the Trust Stockholder, and (y) if applicable, the resolutions of the trustee of the Trust Stockholder authorizing the transactions contemplated under this Agreement;
(xv) An executed certificate of the Secretary (or other executive officer) of the Company certifying: (w) that the charter and organizational documents of the Company (which are to be attached to the certificate) are true and correct as of the Closing Date; provided, however(x) the names and signatures of the officers authorized to sign this Agreement and the other documents to be delivered in connection therewith on behalf of the Company, no such offset with respect to dividends shall apply to and (y) the resolutions of the board of directors and stockholders of the Company Shares not actually purchased by Buyersauthorizing the transactions contemplated under this Agreement (the “Company’s Secretary Certificate”);
(iixvi) On the Closing DateAll third-party consents and approvals that are required in order to prevent a breach of or default under, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver a termination or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blankmodification of, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) acceleration of the Purchased Shares to one or more accounts designated by the Buyersterms of, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect Contract of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect a result of the Company Shares consummation of the transactions contemplated herein and all governmental and regulatory consents and approvals that Sellers are obligated necessary for the consummation of the transactions contemplated hereby and the operation of the Business following the Closing in substantially the same manner as it was operated before the Closing, in each case, on terms reasonably satisfactory to sell on the Modified Closing Date.Buyer and without conditions or modifications adverse to Buyer;
(ivxvii) Notwithstanding anything All original minute books, records, equity interest ledgers, corporate seals and other materials of the Company;
(xviii) Executed landlord estoppels, landlord waivers, and landlord consents (to the extent such waivers and consents are required pursuant to the terms of the applicable Leases) with respect to each property comprising the Leased Real Property, in each case in such form and substance as reasonably acceptable to Buyer;
(xix) All documents, certificates, filings, and other information required by Buyer’s lenders; and
(xx) Such other documents as Buyer may reasonably request, in form and substance satisfactory to Buyer, and if necessary, executed by the Stockholders and the Company for the purpose of evidencing the accuracy of the representations and warranties contained in this Agreement to or the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason satisfaction of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, conditions and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofcovenants set forth herein.
Appears in 1 contract
Closing Deliveries. At the Closing, the parties shall deliver the documents and instruments that are set forth in this Section 2.4, all of which shall be deemed delivered concurrently.
(a) Each Seller agrees to execute and/or deliver to Purchaser (or such other Person as indicated below) all of the following at the Closing:
(i) On certificates representing all of the issued and outstanding Shares held by Sellers, duly endorsed in blank or with duly executed stock powers attached;
(ii) Termination Agreements between the Company and each holder of Options and Restricted Stock Units, in a form reasonably acceptable to Purchaser, evidencing the termination and cancellation of all of the outstanding Share Equivalents held by such holders, subject to the consummation of the transactions contemplated by this Agreement;
(iii) a customary release from Sellers of any and all claims such Seller may have against the Company;
(iv) the written resignation of Sellers, effective as of the Closing Date, subject of the directorships and offices of the Company held by such Sellers, if and to Section 1.3(d)(ivthe extent requested by Purchaser prior to the Closing; and
(v) below the acceptance of Aspen Technology, Inc.’s employment offers by each Key Seller.
(b) The Company shall execute and/or deliver to Purchaser (or such other Person as indicated below) all of the following at the Closing:
(i) an invoice issued by each creditor of Transaction Expenses, which sets forth (A) the amounts required to pay in full all Transaction Expenses owed to such creditor on the Closing Date, (B) the wire transfer instructions for the payment of such Transaction Expenses to such creditor, and (C) a release of all Liens granted by the Company to such creditor or otherwise arising with respect to such Transaction Expenses, effective upon payment of such Transaction Expenses (collectively, the “Transaction Invoices”);
(ii) the third party consents to the consummation of the transactions contemplated by this Agreement under or with respect to the Contracts and Permits listed in accordance Schedule 2.4(b);
(iii) physical possession of all minute books and stock of the Company, together with Section 1.2(ashare certificates or other applicable instruments and registry entries representing all of the issued and outstanding shares of capital stock, in proper form for transfer;
(iv) certified copies of the Company’s certificate of incorporation or formation, issued by the secretary of state of the Company’s state of incorporation or formation, as applicable;
(v) certificate of good standing for the Company issued not earlier than ten (10) Business Days prior to the Closing Date by the applicable Governmental Authorities of the state in which the Company is incorporated;
(vi) a certificate of the secretary of the Company certifying as true, correct and complete the following: (A) copies of the Company’s certificate of incorporation and bylaws; and (B) a copy of the resolutions of the Company’s board of directors (i) authorizing the execution, delivery and performance of this Agreement and/or any other documents delivered by the Company hereunder, and (ii) terminating the Company 401(k) Plan as of the day immediately preceding the Closing Date;
(vii) evidence, in a form satisfactory to Purchaser, of the discharge in full of the Indebtedness, along with all applicable UCC-3 termination statements with regard to the Indebtedness;
(viii) a certificate in compliance with the Foreign Investment in Real Property Tax Act, as amended (“FIRPTA”), certifying that the Buyers Company is not a United States real property holding corporation and that the shares of capital stock of the Company being purchased pursuant to this Agreement do not constitute United States real property interests (as defined in the Code); and
(ix) without limitation by specific enumeration of the foregoing, all other documents reasonably required from Sellers and the Company to consummate the transactions contemplated by this Agreement.
(c) Purchaser agrees to execute and/or deliver to each Seller (or such other Person as indicated below) all of the following at the Closing:
(i) For each Seller that is a holder of Preferred Shares or Common Shares, Purchaser shall deliver or cause to be delivered to Sellers the pay in cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to a bank account designated by such accounts as RiverNorth Capital on behalf of Sellers has specified in writing Seller at least two (2) Business Days prior to the Closing Date (it being understood that, one (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or Business Day prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as amount of the Closing DatePayment set forth next to such Seller’s name in Schedule 2.4(c), reduce for the aggregate amount payable Shares held by the Buyers such Seller and sold to Sellers on the Closing Date; provided, however, no such offset with respect Purchaser pursuant to dividends shall apply to Company Shares not actually purchased by Buyers)this Agreement;
(ii) On Purchaser shall pay to the Closing Date, subject Company in cash by wire transfer of immediately available funds to Section 1.3(d)(iv) below, Sellers shall a bank account designated by Company at least one (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day Business Day prior to the Closing Date, Buyers provide written notice the Company Share Equivalent Payment; and
(iii) to RiverNorth that they willthe Seller Representative, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least One Hundred Fifty Thousand Dollars ($46,103,000 but less than then $57,628,750 150,000) (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Representative Expense Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Aspen Technology Inc /De/)
Closing Deliveries. The Company shall have delivered to Prudential, in form and substance satisfactory to Prudential each of the following:
(i) On the Note to be purchased by Prudential pursuant to SECTION 2.1 duly executed and delivered by the Company and payable to Prudential;
(ii) certificates issued to Prudential evidencing the Common Stock Shares to be purchased by Prudential pursuant TO SECTION 2.1;
(iii) Warrant Certificates issued to Prudential by the Company evidencing the Warrants to be purchased by Prudential pursuant to SECTION 2.1;
(iv) the Amendment to Registration Rights Agreement duly executed and delivered by the Company, 3TEC, Prudential and the other parties thereto;
(v) the Participation Rights Agreement duly executed and delivered by the Company, Prudential and 3TEC;
(vi) a favorable opinion of Xxxxxx Xxxxxxx Law Firm, L.L.C., counsel for the Company, in form and substance satisfactory to Prudential and its counsel;
(vii) all resolutions, certificates and documents Prudential may request relating to (A) the organization, existence, good standing and foreign qualification of the Company and each of its Subsidiaries, (B) the corporate authority for the execution, delivery and enforceability of this Agreement and the consummation of the Closing DateTransactions, subject (C) the stock ownership of the Company and each of its Subsidiaries, (D) evidence of all resolutions and related documents necessary to Section 1.3(d)(ivincrease the Company's outstanding capital, if necessary, and (E) below such other matters relevant to the foregoing as Prudential shall reasonably request, all of which shall be in form and in accordance with Section 1.2(a)substance satisfactory to Prudential and its counsel;
(viii) if applicable, the Buyers waiting period applicable to the transactions contemplated hereby under the HSR Act shall deliver have expired or cause been terminated and all filings required to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or made prior to the Closing Date, and which the Buyers are entitled to receive under the terms hereinall consents, shallapprovals, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers);
(ii) On the Closing Date, subject to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause permits and authorizations required to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day obtained prior to the Closing DateDate from, Buyers provide any Governmental Authority in connection with execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained.
(ix) evidence satisfactory to Prudential that all Closing Transactions have been consummated;
(x) a certificate from an Authorized Officer of the Company certifying that (A) neither a Default nor an Event of Default has occurred, and (B) each and every representation and warranty of the Company in the Transaction Documents is true and correct in all material respects;
(xi) written notice consent to RiverNorth that they willthe incurrence of the Debt to evidenced by the Notes and the issuance of the Common Stock Shares and the Warrants by the lenders party to the Compass Senior Credit Agreement and 3TEC; and
(xii) such other documents, on instruments and agreements as Prudential shall reasonably request in light of the transactions contemplated hereunder. The documents, certificates and opinions referred to in this SECTION 6.1(a) shall be delivered to Prudential no later than the Closing Date and shall, except as expressly provided otherwise, be dated the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Middle Bay Oil Co Inc)
Closing Deliveries. (a) At or prior to the Closing, Appaloosa, Purchaser and/or the Standby Purchasers, as applicable, will deliver to New Dana:
(i) On the Closing DateSeries A Purchase Price, subject to Section 1.3(d)(iv) below and the Xxxies B Purchase Price or the Direct Shares Purchase Price, as applicable, payable in accordance with Section 1.2(a), the Buyers shall deliver or cause to be delivered to Sellers the cash amounts set forth on Schedule I hereto in respect of each Seller, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two (2) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms of the Escrow Agreement shall be deemed to satisfy this requirement with respect to the Escrow Funds deposited by Holdings and (2) the amount of any dividends that the Company has declared with a record date on or prior to the Closing Date, and which the Buyers are entitled to receive under the terms herein, shall, to the extent the Buyers have not received such dividends as of the Closing Date, reduce the aggregate amount payable by the Buyers to Sellers on the Closing Date; provided, however, no such offset with respect to dividends shall apply to Company Shares not actually purchased by Buyers)1.4;
(ii) On a counterpart to the Closing DateShareholders Agreement in the form attached hereto as Exhibit B (the "Shareholders Agreement"), subject duly executed by Appaloosa and Purchaser;(1)
(iii) a counterpart to Section 1.3(d)(ivthe Registration Rights Agreement in the form attached hereto as Exhibit C (the "Series A Registration Rights Agreement"), duly executed by Purchaser;(2) and
(iv) a counterpart to the Registration Rights Agreement in the form attached hereto as Exhibit D (the "Series B Registration Rights Agreement" and, together with the Series A Registration Rights Agreement, the "Registration Rights Agreements").
(b) At or prior to the Closing, New Dana will deliver to Purchaser and each Standby Pxxxxaser, as applicable:
(i) Subject to clause (c) below, Sellers shall validly issued stock certificates evidencing the shares of Series A Preferred and/or Series B Preferred, as applicable; all such shares will be delivered with any and all issue, stamp, transfer, sales and use, or similar Taxes or duties payable in connection with such delivery duly paid by the Company;
(ii) a counterpart to the Shareholders Agreement duly executed by New Dana;
(1) deliver or cause Note: Document to be delivered to the Buyers the certificates, modifixx xppropriately if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or additional purchasers are added.
(2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1) and (2), in respect of the Purchased Shares Note: Document to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liensmodified appropriately if additional purchasers are added.
(iii) On a counterpart to the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Registration Rights Agreements duly executed by New Dana; and
(iv) Notwithstanding anything in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason a copy of the failure New Dana xxxxter containing the Certificate of any Closing Condition to be fulfilled as Dxxxxnations, certified by the Secretary of State of the Termination Date, if on state in which it is incorporated.
(c) Certificates for shares of Series B Preferred purchased by Eligible Holders will be delivered as promptly as practicable after the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereofClosing.
Appears in 1 contract
Closing Deliveries. (ia) On At the Closing Date, subject to Section 1.3(d)(iv) below and in accordance with Section 1.2(a)Closing, the Buyers Company shall deliver deliver, or cause to be delivered delivered, to Sellers Alarm and/or the cash amounts Merger Sub the following:
(i) intentionally omitted.
(ii) certificates referred to in Sections 8.1(a) and 8.1(b);
(iii) written resignations of directors and officers of the Company, other than the individuals set forth on Schedule I hereto 3.4(a)(iii);
(iv) an appropriate receipt and release evidencing the termination of the Debt on Schedule 3.4(a)(iv), together with evidence of arrangements to deliver UCC-3 termination statements or similar documents evidencing the termination of all Liens held by the lenders under the Debt on Schedule 3.4(a)(iv), in respect form and substance reasonably satisfactory to Alarm;
(v) evidence in form and substance reasonably satisfactory to Alarm and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Exceptions) on any of each Sellerthe properties or assets of the Company shall have been released, by wire transfer of immediately available funds to such accounts as RiverNorth Capital on behalf of Sellers has specified in writing at least two discharged and terminated;
(2vi) Business Days prior to the Closing Date (it being understood that, (1) with respect to Holdings, the delivery of a release instruction to the Escrow Agent in accordance with the terms counterpart of the Escrow Agreement shall be deemed Agreement, duly executed by the Stockholder Representative;
(vii) evidence in form and substance reasonably satisfactory to satisfy this requirement with respect to the Escrow Funds deposited by Holdings Alarm and (2) the amount of any dividends its counsel that the Company has declared with a record date on or prior Series B Documents have been terminated in full;
(viii) evidence in form and substance reasonably satisfactory to Alarm and its counsel that all options and the Closing DateCompany’s stock option plan have been terminated in full, and which each shall no longer have any force or effect;
(ix) evidence in form and substance reasonably satisfactory to Alarm and its counsel that all warrants to purchase capital stock of the Buyers are entitled Company have been terminated in full, and each shall no longer have any force or effect;
(x) evidence in form and substance reasonably satisfactory to receive under Alarm and its counsel that the terms hereinagreements identified on Schedule 3.4(a)(x) have been terminated in full and no longer have any force or effect;
(xi) a certificate of the Secretary or Assistant Secretary of the Company, shall, to the extent the Buyers have not received such dividends dated as of the Closing Date, reduce certifying as to the aggregate amount payable incumbency of any officer or representative executing any Company Document on behalf of the Company, the resolutions of the Company’s Board of Directors and the Stockholders approving the transactions contemplated by the Buyers Company Documents, and such other customary matters as Alarm and its counsel may reasonably request;
(xii) evidence that all of the Company’s employees have entered into Alarm’s standard Work Product Assignment and Confidentiality Agreement;
(xiii) a compact disc (Which shall be permanent and accessible, without the need for any password, with readily and commercially available software) containing in electronic format, all documents posted to Sellers the datasite maintained by Ackrell Capital, LLC on behalf of the Closing Date; providedCompany as of the Closing;
(xiv) the Stockholder Consent, howeverexecuted and delivered in accordance with Section 7.11, no a copy of the Section 228(e) notice in connection therewith, a copy of which shall have been delivered to each Stockholder of the Company who has not signed the Stockholder Consent in accordance with the DGCL;
(xv) Letters of Transmittal executed by holders of at least 98% of the outstanding capital stock of the Company, including the Holders of 100% of the outstanding Series A Preferred Stock and Series B Preferred Stock, including affidavits from each Stockholder who is a U.S. person under Code Section 1445 and the regulations thereunder affirming that such offset with respect Stockholder is not a “foreign person” within the meaning of Section 1.1445-2(b) of the Treasury Regulations and, on behalf of each Stockholder who is not a U.S. person under Code Section 1445 and the regulations thereunder, an affidavit from the Company pursuant to dividends Code Section 1445 and Treasury Regulation Section 1.897-2(h) and 1.145-2(c)(3) affirming that the Company is not a U.S. real property holding corporation;
(xvi) any other deliverable contemplated in Section 8.1.
(b) At Closing, Alarm and the Merger Sub, as applicable, shall apply deliver, or cause to Company Shares not actually purchased by Buyers)be delivered the following:
(i) evidence of the wire transfers referred to in Section 2.2;
(ii) On the Closing Date, subject certificates referred to Section 1.3(d)(iv) below, Sellers shall (1) deliver or cause to be delivered to the Buyers the certificates, if any, representing the Purchased Shares, duly and validly endorsed or accompanied by stock powers duly and validly executed in blank, or (2) in lieu of any such certificates, Sellers may arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian (“DWAC”)) of the Purchased Shares to one or more accounts designated by the Buyers, in the case of each of (1Sections 8,2(a) and (28.2(b), in respect of the Purchased Shares to be purchased on the Closing Date as set forth on Schedule I attached hereto (as it may be amended in accordance with Section 1.1) and sufficient to convey to the Buyers good, valid and marketable title in and to such Purchased Shares, free and clear of any and all Liens.;
(iii) On the Modified Closing Date, (1) the Buyers shall take any such action as would be required under Section 1.3(d)(i) in respect a counterpart of the Company Shares that the Buyers are obligated to purchase on the Modified Closing Date and (2) Sellers shall take any such action as would be required under Section 1.3(d)(ii) in respect of the Company Shares that Sellers are obligated to sell on the Modified Closing Date.Escrow Agreement, duly executed by Alarm; and
(iv) Notwithstanding anything any other deliverable contemplated in this Agreement to the contrary, unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled as of the Termination Date, if on the day prior to the Closing Date, Buyers provide written notice to RiverNorth that they will, on the Closing Date, purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000 but less than then $57,628,750 (which notice shall specify the amount Buyers will purchase on the Closing Date (such amount, the “Notice Amount”)), for purposes of this Section 1.3, each amount on Schedule I hereto shall be reduced to the amount derived by multiplying each such number by the quotient resulting from the Notice Amount divided by 57,628,750, and Closing shall proceed in accordance with terms of this Agreement based on such modified Schedule I. For the avoidance of doubt, nothing in this Section 1.3(d)(iv) modifies the obligation of the Buyers to purchase the Purchased Shares, subject to the terms and conditions of this Agreement. Nothing shall prevent RiverNorth from seeking to compel specific performance of the terms this Agreement in accordance with Section 6.4 hereof8.2.
Appears in 1 contract