Closing Obligations and Conditions. At the Closing, (a) as a condition to Buyer’s obligations at the Closing: (i) Seller shall deliver to Buyer at the Closing: (A) a xxxx of sale for all of the Assets in the form of Exhibit 2.6(a)(i)(A) (the “Xxxx of Sale”) executed by Seller; (B) an assignment of all the Assumed Liabilities to Buyer, which assignment shall be in the form of Exhibit 2.6(a)(i)(B) and also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”) executed by Seller; (C) a separate assignment of all Domain Names, in the form of Exhibit 2.6(a)(i)(C), executed by Seller and Buyer and notarized by a licensed notary; (D) such other deeds, bills of sale, assignments, certificates of title, documents or other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by Seller; (E) the Consents listed on Exhibit 2.6(a)(i)(E) with respect to Seller Contracts; (F) a certificate executed by Seller as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing; (G) a certificate of the Secretary of Seller (1) certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller (as certified, where feasible, by the Secretary of State of Delaware, with respect to Seller, as of a recent date), (2) certifying, as complete and accurate as of the Closing, attached copies of all requisite resolutions or actions of Seller’s board of directors and the Seller Stockholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of Seller’s name contemplated by Section 5.14, (3) certifying to the incumbency and signatures of the officers of Seller executing this Agreement and any other document relating to the Contemplated Transactions, and (4) attaching a certificate as of a date not earlier than the fifth business day prior to the Closing Date as to the good standing of Seller, executed by the appropriate officials of the State of Delaware and each jurisdiction in which Seller is licensed or qualified to do business as a foreign corporation as specified in Part 3.1; (H) releases of all Encumbrances on the Assets, other than Permitted Encumbrances; (I) a completed and executed Investor Representation Statement of each of the Seller Stockholders; (J) the Escrow Agreement (as defined below) executed by the Stockholder Representative; (K) the consulting agreements to be agreed upon prior to the Closing and then attached hereto in the forms of Exhibit 2.6(a)(i)(K)(1)-(2), executed by J. Xxxxxxx Xxxxxxxxxx and Xxxx Xxxxxx, respectively (the “Consultant Agreements”); (L) Buyer's standard form of Confidentiality, Noncompete, Nonsolicit and Assignment Agreement executed by each Hired Active Employee (the "Non-Competition Agreements"); (M) satisfactory evidence that all legal counsel to Seller has been paid in full for all services rendered in connection with the negotiation of this Agreement and the Contemplated Transactions; (N) a hard copy backup of all Software related to the Business; (O) the Closing Statement, which shall be subject to Buyer’s approval in its sole discretion; (P) a written consent executed by each of the Indemnifying Stockholders, in a form reasonably satisfactory to Buyer, consenting to the Indemnification Escrow, the allocation thereof as provided in Schedule 1.1, the provisions of Article VI hereof, and the allocation of the Spindle Closing Shares as provided in Schedule 2.3(a)(i); (Q) unaudited financial statements of Seller for each of the three fiscal years ended December 31, 2010, 2011 and 2012, and financial statements of Seller for the interim period ended September 30, 2012; and (R) such other documents or information as Buyer may reasonably request for the purpose of completing its due diligence review of Seller and the Business, including, without limitation, (A) evidencing the accuracy of any of Seller’s representations and warranties, (B) evidencing the performance by Seller, or the compliance by Seller with, any covenant or obligation required to be performed or complied with by Seller pursuant to this Agreement, or (C) otherwise facilitating the consummation or performance of any of the Contemplated Transactions, it being understood and agreed that Buyer’s obligations at the Closing are conditioned upon Buyer’s satisfaction, in its sole discretion, with the results of its due diligence review of Seller and the Business. (ii) Buyer shall be satisfied in its sole discretion with the results of its due diligence review of Seller and the Business; (iii) no breach of any covenant or failure of any representation or warranty made by Seller; (iv) absence of any Material Adverse Effect with respect to Seller; and (v) neither J. Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxx nor Xxxx Xxxxxx shall have terminated, or given notice of an intention to terminate, his employment or consultancy with Buyer which began prior to the date of this Agreement; and (vi) no injunctions prohibiting the consummation of the Contemplated Transactions. (b) As a condition to Seller’s obligations at the Closing: (i) Buyer shall deliver to Seller: (A) certificates representing the Spindle Closing Shares; (B) the Xxxx of Sale, executed by Buyer; (C) the Assignment and Assumption Agreement; executed by Buyer; (D) the Consultant Agreements, executed by Buyer; (E) the Escrow Agreement (as defined below) executed by Buyer and Escrow Agent; (F) the Non-Competition Agreements executed by Buyer; (G) a certificate executed by Buyer as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing; (H) a certificate of the Secretary of Buyer certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Buyer and certifying that the execution and delivery of this Agreement and the consummation of the Contemplated Transactions has been approved by all requisite authority and certifying to the incumbency and signatures of the officers of Buyer executing this Agreement and any other document relating to the Contemplated Transactions; (I) a certificate as of a date not earlier than the tenth business day prior to the Closing Date as to the good standing of Buyer, executed by the appropriate officials of the State of Nevada; and (ii) no breach of any covenant or failure of any representation or warranty made by Buyer; (iii) no injunctions prohibiting the consummation of the Contemplated Transactions; and (iv) immediately upon Closing, Seller shall be allotted (A) one seat on Buyer's board of directors for not less than the remainder of the 2013 fiscal year, and (B) one seat on Buyer's board of advisors. (c) Buyer shall deliver to the Escrow Agent (also serving as transfer agent to Buyer) instructions as to the issuance of stock certificates representing the shares comprising (i) the Indemnification Escrow, allocated among and issued in the names of the individual Indemnifying Stockholders as provided in Schedule 1.1(or to Seller if required under Section 368(a)(1)(C) of the Code) and (ii) the Spindle Closing Shares, allocated among and issued in the names of the individual Seller Stockholders as provided in Schedule 2.3(a)(i) (or directly to Seller if required under Section 368(a)(1)(C) of the Code); and (d) If any of the Seller Stockholders are not accredited investors within the meaning of Rule 501 of Regulation D, then Buyer shall deliver to the Seller Stockholders the information required to be delivered to non-accredited investors pursuant to Rule 502 of Regulation D (the “Buyer Offering Materials”), in order for Buyer’s issuance of the Aggregate Share Consideration to be exempt from registration pursuant to Rule 506 of Regulation D and/or Regulation S.
Appears in 1 contract
Closing Obligations and Conditions. At In addition to any other document to be delivered under other provisions of this Agreement, at the Closing,:
(a) as As a condition to Buyer’s obligations at the Closing, Seller shall deliver to Buyer:
(i) Seller shall deliver to Buyer at the Closing:
(A) a xxxx of sale for all of the Assets in the form of Exhibit 2.6(a)(i)(A2.6(a)(i) (the “Xxxx of Sale”) executed by Seller;
(Bii) an assignment of all the Assumed Liabilities to Buyer, which assignment shall be in the form of Exhibit 2.6(a)(i)(B2.6(a)(ii) and also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”) executed by Seller;
(Ciii) a separate assignment assignments of all Intellectual Property Assets, as defined in Section 3.23(a), consisting of separate assignments of all registered Marks, Patents, and Domain Names, in the form of Exhibit 2.6(a)(i)(C)Exhibits 2.6(a)(iii)(A)-(C) respectively, executed by Seller and Buyer and each notarized by a licensed notary;
(Div) such other deeds, bills of sale, assignments, certificates of title, documents or other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by Seller;
(Ev) the Consents listed on Exhibit 2.6(a)(i)(E2.6(a)(v) with respect to Seller Contracts;
(Fvi) a certificate executed by Seller as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(Gvii) a certificate of the Secretary of Seller (1A) certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller (as certified, where feasible, by the Secretary of State of Delaware, with respect to Seller, as of a recent date), (2B) certifying, as complete and accurate as of the Closing, attached copies of all requisite resolutions or actions of Seller’s board of directors and the Seller Stockholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of Seller’s name contemplated by Section 5.145.15, (3C) certifying to the incumbency and signatures of the officers of Seller executing this Agreement and any other document relating to the Contemplated Transactions, and (4D) attaching a certificate as of a date not earlier than the fifth tenth business day prior to the Closing Date as to the good standing of Seller, executed by the appropriate officials of the State of Delaware and each jurisdiction in which Seller is licensed or qualified to do business as a foreign corporation as specified in Part 3.1;
(Hviii) releases of all Encumbrances on the Assets, other than Permitted Encumbrances;
(Iix) a completed and executed the Investor Representation Statement of Statement, executed by each of the Seller StockholdersNoteholders, Seller Stockholders and Seller Incentive Participants, in the form of Exhibit 2.6(a)(ix);
(Jx) the Escrow Agreement (as defined below) executed by the Stockholder Representative;
(Kxi) the consulting agreements to be agreed upon prior to the Closing and then attached hereto an employment agreement in the forms form of Exhibit 2.6(a)(i)(K)(1)-(2), executed by J. Xxxxxxx Xxxxxxxxxx and Xxxx Xxxxxx, respectively 2.6(a)(xi) (the “Consultant AgreementsEmployment Agreement”)) executed by Xxxxxx Xxxxxx;
(L) Buyer's standard form of Confidentiality, Noncompete, Nonsolicit and Assignment Agreement executed by each Hired Active Employee (the "Non-Competition Agreements");
(Mxii) satisfactory evidence that all legal counsel counsels to Seller has have been paid in full for all services rendered in connection with the negotiation of this Agreement and the Contemplated Transactions;
(Nxiii) a hard copy backup of all Software related to the Business;
(Oxiv) the Closing Statement, which shall be subject to Buyer’s approval in its sole discretionBalance Sheet;
(Pxv) a written consent release executed by each all the Seller Noteholders releasing Seller, its successors and assigns, and holding Buyer harmless, from any and all indebtedness of Seller to the Seller Noteholders, in consideration of the Indemnifying Stockholders, in a form reasonably satisfactory to Buyer, consenting issuance by Buyer to the Indemnification Escrow, the allocation thereof as provided in Schedule 1.1, the provisions of Article VI hereof, and the allocation Seller Noteholders of the Spindle Closing Shares as provided applicable portion of the Aggregate Share Consideration, subject to and in Schedule 2.3(a)(iaccordance with the terms hereof;
(xvi) an Acknowledgement and Release; executed by all the holders of options to acquire capital stock of Seller (immediately prior to the exercise of the same in connection with Closing) in the form attached to that Notice to Option Holders in the form of Exhibit 2.6(a)(xvi);
(Qxvii) unaudited financial statements of Seller for each of the three fiscal years ended December 31, 2010, 2011 and 2012, and financial statements of Seller for Stockholder Representative Agreement duly executed by the interim period ended September 30, 2012Stockholder Representative; and
(Rxviii) such other documents or information as Buyer may reasonably request for the purpose of completing its due diligence review of Seller and the Business, including, without limitation, (A) evidencing the accuracy of any of Seller’s representations and warranties, (B) evidencing the performance by Seller, or the compliance by Seller with, any covenant or obligation required to be performed or complied with by Seller pursuant to this Agreement, or (C) otherwise facilitating the consummation or performance of any of the Contemplated Transactions, it being understood and agreed that Buyer’s obligations at the Closing are conditioned upon Buyer’s satisfaction, in its sole discretion, with the results of its due diligence review of Seller and the Business.
(ii) Buyer shall be satisfied in its sole discretion with the results of its due diligence review of Seller and the Business;
(iii) no breach of any covenant or failure of any representation or warranty made by Seller;
(iv) absence of any Material Adverse Effect with respect to Seller; and
(v) neither J. Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxx nor Xxxx Xxxxxx shall have terminated, or given notice of an intention to terminate, his employment or consultancy with Buyer which began prior to the date of this Agreement; and
(vi) no injunctions prohibiting the consummation of the Contemplated Transactions.
(b) As a condition to Seller’s obligations at the Closing:
(i) , Buyer shall deliver to Seller:
(Ai) certificates representing the Spindle Augme Closing Shares;
(Bii) the Xxxx of Sale, executed by Buyer;
(Ciii) the Assignment and Assumption Agreement; executed by Buyer;
(Div) the Consultant AgreementsEmployment Agreement, executed by Buyer;
(Ev) the Escrow Agreement (as defined below) executed by Buyer and Escrow AgentAgent (as defined below);
(F) the Non-Competition Agreements executed by Buyer;
(Gvi) a certificate executed by Buyer as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(Hvii) a certificate of the Secretary of Buyer certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Buyer and certifying that the execution and delivery of this Agreement and the consummation of the Contemplated Transactions has been approved by all requisite authority and certifying to the incumbency and signatures of the officers of Buyer executing this Agreement and any other document relating to the Contemplated Transactions;
(Iviii) a certificate as of a date not earlier than the tenth business day prior to the Closing Date as to the good standing of Buyer, executed by the appropriate officials of the State of Nevada; and
(ii) no breach of any covenant or failure of any representation or warranty made by Buyer;
(iii) no injunctions prohibiting the consummation of the Contemplated Transactions; and
(iv) immediately upon Closing, Seller shall be allotted (A) one seat on Buyer's board of directors for not less than the remainder of the 2013 fiscal year, and (B) one seat on Buyer's board of advisorsDelaware.
(c) Buyer shall deliver to the Escrow Agent (also serving as transfer agent to Buyer) instructions as to the issuance of stock certificates representing the shares comprising (i) the Indemnification Escrow, allocated among and issued in the names of the individual Indemnifying Seller Noteholders, the Seller Stockholders and the Seller Incentive Participants as provided in Schedule 1.1(or to Seller if required under Section 368(a)(1)(C) of the Code) and (ii) the Spindle Closing Shares, allocated among and issued in the names of the individual Seller Stockholders as provided in Schedule 2.3(a)(i) (or directly to Seller if required under Section 368(a)(1)(C) of the CodePart 2.6(c); and
(d) If any of the Seller Stockholders are not accredited investors within the meaning of Rule 501 of Regulation D, then Buyer shall deliver to the Seller Noteholders, the Seller Stockholders and the Seller Incentive Participants the information required to be delivered to non-accredited investors pursuant to Rule 502 of Regulation D (the “Buyer Offering Materials”), in order for Buyer’s issuance of the Aggregate Share Consideration Augme Closing Shares and the shares comprising the Indemnification Escrow (collectively, the “Augme Common Shares”) to be exempt from registration pursuant to Rule 506 of Regulation D and/or Regulation S.D.
Appears in 1 contract
Samples: Asset Purchase Agreement (Augme Technologies, Inc.)
Closing Obligations and Conditions. At the Closing,
(a) as a condition to Buyer’s obligations at the Closing:
(i) Seller shall deliver to Buyer at the Closing:
(A) a xxxx of sale for all of the Assets in the form of Exhibit 2.6(a)(i)(A) (the “Xxxx of Sale”) executed by Seller;
(B) an assignment of all the Assumed Liabilities to Buyer, which assignment shall be in the form of Exhibit 2.6(a)(i)(B) and also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”) executed by Seller;
(C) a separate assignment assignments of all Intellectual Property Assets, as defined in Section 3.23(a), consisting of separate assignments of all registered Marks and Domain Names, in the form of Exhibit 2.6(a)(i)(C)Exhibits 2.6(a)(i)(C)(1)-(2) respectively, executed by Seller and Buyer and and, with respect to each trademark assignment, each notarized by a licensed notary;
(D) such other deeds, bills of sale, assignments, certificates of title, documents or other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by Seller;
(E) the Consents listed on Exhibit 2.6(a)(i)(E) with respect to Seller Contracts;
(F) a certificate executed by Seller as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(G) a certificate of the Secretary of Seller (1) certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller (as certified, where feasible, by the Secretary of State of Delaware, with respect to Seller, as of a recent date), (2) certifying, as complete and accurate as of the Closing, attached copies of all requisite resolutions or actions of Seller’s board of directors and the Seller Stockholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of Seller’s name contemplated by Section 5.145.15, (3) certifying to the incumbency and signatures of the officers of Seller executing this Agreement and any other document relating to the Contemplated Transactions, and (4) attaching a certificate as of a date not earlier than the fifth tenth business day prior to the Closing Date as to the good standing of Seller, executed by the appropriate officials of the State of Delaware and each jurisdiction in which Seller is licensed or qualified to do business as a foreign corporation as specified in Part 3.1;
(H) releases of all Encumbrances on the Assets, other than Permitted Encumbrances;
(I) a completed and executed Investor Representation Statement of each of the Seller StockholdersIntentionally omitted;
(J) the Escrow Agreement (as defined below) executed by the Stockholder Representative;
(K) the consulting agreements to be agreed upon prior to the Closing and then attached hereto in the forms form of Exhibit 2.6(a)(i)(K)(1)-(2), 2.6(a)(i)(K)(1) executed by J. Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx and Exhibit 2.6(a)(i)(K)(2) executed by Xxxx Xxxxxx, respectively (Xxxxxxxx the “Consultant Consulting Agreements”);
(L) Buyer's standard form of Confidentiality, Noncompete, Nonsolicit and Assignment Agreement executed by each of the Hired Active Employee Employees (the "Non-Competition Agreements");
(M) satisfactory evidence that all legal counsel to Seller has been paid in full for all services rendered in connection with the negotiation of this Agreement and the Contemplated Transactions;
(N) a hard copy backup of all Software related to the Business;
(O) the Closing Statement, which shall be subject to Buyer’s approval in its sole discretion;
(P) a written consent executed by each of the Indemnifying Stockholders, in a form reasonably satisfactory to Buyer, consenting to the Indemnification Escrow, the allocation thereof as provided in Schedule 1.1, the provisions of Article VI hereof, and the allocation of the Spindle Closing Shares as provided in Schedule 2.3(a)(i);
(Q) unaudited financial statements of Seller for each of the three fiscal years ended December 31, 2010, 2011 and 2012, and financial statements of Seller for the interim period ended September 30, 2012; and
(R) such other documents or information as Buyer may reasonably request for the purpose of completing its due diligence review of Seller and the Business, including, without limitation, (A) evidencing the accuracy of any of Seller’s representations and warranties, (B) evidencing the performance by Seller, or the compliance by Seller with, any covenant or obligation required to be performed or complied with by Seller pursuant to this Agreement, or (C) otherwise facilitating the consummation or performance of any of the Contemplated Transactions, it being understood and agreed that Buyer’s obligations at the Closing are conditioned upon Buyer’s satisfaction, in its sole discretion, with the results of its due diligence review of Seller and the Business.
(ii) Buyer shall be satisfied in its sole discretion with the results of its due diligence review of Seller and the Business;
(iii) no breach of any covenant or failure of any representation or warranty made by Seller;
(iv) absence of any Material Adverse Effect with respect to Seller; and
(v) neither J. Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxx nor Xxxx Xxxxxx shall have terminated, or given notice of an intention to terminate, his employment or consultancy with Buyer which began prior to the date of this Agreement; and
(vi) no injunctions prohibiting the consummation of the Contemplated Transactions.
(b) As a condition to Seller’s obligations at the Closing:
(i) Buyer shall deliver to Seller:
(A) certificates representing the Spindle Closing Shares;
(B) the Xxxx of Sale, executed by Buyer;
(C) the Assignment and Assumption Agreement; executed by Buyer;
(D) the Consultant Agreements, executed by Buyer;
(E) the Escrow Agreement (as defined below) executed by Buyer and Escrow Agent;
(F) the Non-Competition Agreements executed by Buyer;
(G) a certificate executed by Buyer as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(H) a certificate of the Secretary of Buyer certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Buyer and certifying that the execution and delivery of this Agreement and the consummation of the Contemplated Transactions has been approved by all requisite authority and certifying to the incumbency and signatures of the officers of Buyer executing this Agreement and any other document relating to the Contemplated Transactions;
(I) a certificate as of a date not earlier than the tenth business day prior to the Closing Date as to the good standing of Buyer, executed by the appropriate officials of the State of Nevada; and
(ii) no breach of any covenant or failure of any representation or warranty made by Buyer;
(iii) no injunctions prohibiting the consummation of the Contemplated Transactions; and
(iv) immediately upon Closing, Seller shall be allotted (A) one seat on Buyer's board of directors for not less than the remainder of the 2013 fiscal year, and (B) one seat on Buyer's board of advisors.
(c) Buyer shall deliver to the Escrow Agent (also serving as transfer agent to Buyer) instructions as to the issuance of stock certificates representing the shares comprising (i) the Indemnification Escrow, allocated among and issued in the names of the individual Indemnifying Stockholders as provided in Schedule 1.1(or to Seller if required under Section 368(a)(1)(C) of the Code) and (ii) the Spindle Closing Shares, allocated among and issued in the names of the individual Seller Stockholders as provided in Schedule 2.3(a)(i) (or directly to Seller if required under Section 368(a)(1)(C) of the Code); and
(d) If any of the Seller Stockholders are not accredited investors within the meaning of Rule 501 of Regulation D, then Buyer shall deliver to the Seller Stockholders the information required to be delivered to non-accredited investors pursuant to Rule 502 of Regulation D (the “Buyer Offering Materials”), in order for Buyer’s issuance of the Aggregate Share Consideration to be exempt from registration pursuant to Rule 506 of Regulation D and/or Regulation S.
Appears in 1 contract
Closing Obligations and Conditions. At the Closing,
(a) as a condition to Buyer’s obligations at the Closing:
(i) Seller shall deliver to Buyer at the Closing:
(A) a xxxx of sale for all of the Assets in the form of Exhibit 2.6(a)(i)(A) (the “Xxxx of Sale”) executed by Seller;
(B) an assignment of all the Assumed Liabilities to Buyer, which assignment shall be in the form of Exhibit 2.6(a)(i)(B) and also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”) executed by Seller;
(C) a separate assignment assignments of all Intellectual Property Assets, as defined in Section 3.23(a), consisting of separate assignments of all registered Marks, Domain NamesNames and Copyrights, in the form of Exhibit 2.6(a)(i)(C)Exhibits 2.6(a)(i)(C)(1)-(3) respectively, executed by Seller and Buyer and each notarized by a licensed notary;
(D) such other deeds, bills of sale, assignments, certificates of title, documents or other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by Seller;
(E) the Consents listed on Exhibit 2.6(a)(i)(E) with respect to Seller Contracts;
(F) a certificate executed by Seller as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(G) a certificate of the Secretary of Seller (1) certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller (as certified, where feasible, by the Secretary of State of Delaware, with respect to Seller, as of a recent date), (2) certifying, as complete and accurate as of the Closing, attached copies of all requisite resolutions or actions of Seller’s board of directors and the Seller Stockholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of Seller’s name contemplated by Section 5.145.15, (3) certifying to the incumbency and signatures of the officers of Seller executing this Agreement and any other document relating to the Contemplated Transactions, and (4) attaching a certificate as of a date not earlier than the fifth tenth business day prior to the Closing Date as to the good standing of Seller, executed by the appropriate officials of the State of Delaware and each jurisdiction in which Seller is licensed or qualified to do business as a foreign corporation as specified in Part 3.1;
(H) releases of all Encumbrances on the Assets, other than Permitted Encumbrances;
(I) a completed and executed the Investor Representation Statement of Statement, executed by each of the Seller Noteholders and Seller Stockholders, in the form of Exhibit 2.6(a)(i)(I);
(J) the Escrow Agreement (as defined below) executed by the Stockholder Representative;
(K) the consulting employment agreements to be agreed upon prior to the Closing and then attached hereto in the forms of Exhibit 2.6(a)(i)(K)(1)-(22.6(a)(i)(K)(1) and (2), executed by J. Xxxxxxx Xxxxxxxxxx and Xxxx Xxxxxx, respectively (the “Consultant Employment Agreements”)) executed by Xxxx Xxxxxxx and Xxxx Xxxxxx, as applicable;
(L) Buyer's standard form of Confidentiality, Noncompete, Nonsolicit and Assignment Agreement executed by each Hired Active Employee (the "Non-Competition Agreements");
(M) satisfactory evidence that all legal counsel counsels to Seller has have been paid in full for all services rendered in connection with the negotiation of this Agreement and the Contemplated Transactions;
(NM) a hard copy backup of all Software related to the Business;
(ON) the Closing Statement, which shall be subject to Buyer’s approval in its sole discretion;
(O) a conversion notice and release executed by all the Seller Noteholders, in the form of Exhibit 2.6(a)(i)(O), (x) converting the principal of, and interest on the convertible notes held by the Seller Noteholders into shares of Seller common stock effective immediately prior to Closing, and (ii) releasing and holding Seller and Buyer, and their respective Representatives, successors and assigns, harmless, from any and all indebtedness of Seller to the Seller Noteholders, in consideration of the issuance by Buyer to the Seller Noteholders of the applicable portion of the Aggregate Share Consideration, subject to and in accordance with the terms hereof;
(P) a written consent Option Redemption Agreements duly executed by each Seller and those holders of the Indemnifying Stockholders, in a form reasonably satisfactory stock options of Seller mutually determined by Buyer and Seller prior to Buyer, consenting to the Indemnification Escrow, the allocation thereof as provided in Schedule 1.1, the provisions of Article VI hereof, and the allocation of the Spindle Closing Shares as provided in Schedule 2.3(a)(i)Closing;
(Q) unaudited audited financial statements of Seller for each of the three two fiscal years ended December 31, 2010, 2011 2009 and 20122010 together with an audit report thereon by Xxxx Xxxxx LLP, and financial statements of Seller for the interim period ended September June 30, 20122011, reviewed by Xxxx Xxxxx LLP;
(R) a completed and executed Investor Representation Statement from each of the Seller Noteholders and the Seller Stockholders; and
(RS) such other documents or information as Buyer may reasonably request for the purpose of completing its due diligence review of Seller and the Business, including, without limitation, (A) evidencing the accuracy of any of Seller’s representations and warranties, (B) evidencing the performance by Seller, or the compliance by Seller with, any covenant or obligation required to be performed or complied with by Seller pursuant to this Agreement, or (C) otherwise facilitating the consummation or performance of any of the Contemplated Transactions, it being understood and agreed that Buyer’s obligations at the Closing are conditioned upon Buyer’s satisfaction, in its sole discretion, with the results of its due diligence review of Seller and the Business.
(ii) Buyer shall be satisfied in its sole discretion with the results of its due diligence review of Seller and the Business;.
(iii) no breach of any covenant or failure of any representation or warranty made each investment banking firm engaged by Seller;
(iv) absence of any Material Adverse Effect with respect to Seller; and
(v) neither J. Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxx nor Xxxx Xxxxxx Buyer shall have terminated, or given notice of an intention to terminate, his employment or consultancy with Buyer which began prior to the date of this Agreement; and
(vi) no injunctions prohibiting the consummation of approved the Contemplated Transactions.
(b) As a condition to Seller’s obligations at the Closing:
(i) Buyer shall deliver to Seller:
(A) certificates representing the Spindle Augme Closing Shares;
(B) the Xxxx of Sale, executed by Buyer;
(C) the Assignment and Assumption Agreement; executed by Buyer;
(D) the Consultant Employment Agreements, executed by Buyer;
(E) the Escrow Agreement (as defined below) executed by Buyer and Escrow AgentAgent (as defined below);
(F) the Non-Competition Agreements executed by Buyer;
(G) a certificate executed by Buyer as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(HG) a certificate of the Secretary of Buyer certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Buyer and certifying that the execution and delivery of this Agreement and the consummation of the Contemplated Transactions has been approved by all requisite authority and certifying to the incumbency and signatures of the officers of Buyer executing this Agreement and any other document relating to the Contemplated Transactions;
(IH) a certificate as of a date not earlier than the tenth business day prior to the Closing Date as to the good standing of Buyer, executed by the appropriate officials of the State of NevadaDelaware; and
(iiI) no breach such other documents or information as Seller may reasonably request for the purpose of completing its due diligence review of Buyer otherwise facilitating the consummation or performance of any covenant or failure of any representation or warranty made by Buyer;
(iii) no injunctions prohibiting the consummation of the Contemplated Transactions; and, it being understood and agreed that Seller’s obligations at the Closing are conditioned upon Seller’s satisfaction, in its sole discretion, with the results of its due diligence review of Buyer.
(ivii) immediately upon Closing, Seller shall be allotted (A) one seat on satisfied in its sole discretion with the results of its due diligence review of Buyer's board of directors for not less than the remainder of the 2013 fiscal year, and (B) one seat on Buyer's board of advisors.
(c) Buyer shall deliver to the Escrow Agent (also serving as transfer agent to Buyer) instructions as to the issuance of stock certificates representing the shares comprising (i) the Indemnification Escrow, allocated among and issued in the names of the individual Indemnifying Stockholders as provided in Schedule 1.1(or to Seller if required under Section 368(a)(1)(C) of the Code) and (ii) the Spindle Closing Shares, allocated among and issued in the names of the individual Seller Stockholders as provided in Schedule 2.3(a)(i) (or directly to Seller if required under Section 368(a)(1)(C) of the Code); and
(d) If any of the Seller Stockholders are not accredited investors within the meaning of Rule 501 of Regulation D, then Buyer shall deliver to the Seller Stockholders the information required to be delivered to non-accredited investors pursuant to Rule 502 of Regulation D (the “Buyer Offering Materials”), in order for Buyer’s issuance of the Aggregate Share Consideration to be exempt from registration pursuant to Rule 506 of Regulation D and/or Regulation S.
Appears in 1 contract
Samples: Asset Purchase Agreement (Augme Technologies, Inc.)
Closing Obligations and Conditions. At the Closing,
(a) as a condition to Buyer’s obligations at the Closing:
(i) Seller shall deliver to Buyer at the Closing:
(A) a xxxx of sale for all of the Assets in the form of Exhibit 2.6(a)(i)(A) (the “Xxxx of Sale”) executed by Seller;
(B) an assignment of all the Assumed Liabilities to Buyer, which assignment shall be in the form of Exhibit 2.6(a)(i)(B) and also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”) executed by Seller;
(C) a separate assignment assignments of all Intellectual Property Assets, as defined in Section 3.23(a), consisting of separate assignments of all registered Marks, Domain NamesNames and Copyrights, in the form of Exhibit 2.6(a)(i)(C)Exhibits 2.6(a)(i)(C)(1)-(3) respectively, executed by Seller and Buyer and each notarized by a licensed notary;
(D) such other deeds, bills of sale, assignments, certificates of title, documents or other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by Seller;
(E) the Consents listed on Exhibit 2.6(a)(i)(E) with respect to Seller Contracts;
(F) a certificate executed by Seller as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(G) a certificate of the Secretary of Seller (1) certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller (as certified, where feasible, by the Secretary of State of Delaware, with respect to Seller, as of a recent date), (2) certifying, as complete and accurate as of the Closing, attached copies of all requisite resolutions or actions of Seller’s board of directors and the Seller Stockholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of Seller’s name contemplated by Section 5.145.15, (3) certifying to the incumbency and signatures of the officers of Seller executing this Agreement and any other document relating to the Contemplated Transactions, and (4) attaching a certificate as of a date not earlier than the fifth tenth business day prior to the Closing Date as to the good standing of Seller, executed by the appropriate officials of the State of Delaware and each jurisdiction in which Seller is licensed or qualified to do business as a foreign corporation as specified in Part 3.1;
(H) releases of all Encumbrances on the Assets, other than Permitted Encumbrances;
(I) a completed and executed Investor Representation Statement of each of the Seller Noteholders and Seller Stockholders;
(J) the Escrow Agreement (as defined below) executed by the Stockholder Representative;
(K) the consulting employment agreements to be agreed upon prior to the Closing and then attached hereto in the forms of Exhibit 2.6(a)(i)(K)(1)-(22.6(a)(i)(K)(1) and (2), executed by J. Xxxxxxx Xxxxxxxxxx and Xxxx Xxxxxx, respectively (the “Consultant Employment Agreements”)) executed by Xxxx Xxxxxxx and Xxxx Xxxxxx, as applicable;
(L) Buyer's standard form of Confidentiality, Noncompete, Nonsolicit and Assignment Agreement executed by each Hired Active Employee (the "Non-Competition Agreements");
(M) satisfactory evidence that all legal counsel counsels to Seller has have been paid in full for all services rendered in connection with the negotiation of this Agreement and the Contemplated Transactions;
(NM) a hard copy backup of all Software related to the Business;
(ON) the Closing Statement, which shall be subject to Buyer’s approval in its sole discretion;
(O) a conversion notice and release executed by all the Seller Noteholders, in the form of Exhibit 2.6(a)(i)(O), (x) converting the principal of, and interest on the convertible notes held by the Seller Noteholders into shares of Seller common stock effective immediately prior to Closing, and (ii) releasing and holding Seller and Buyer, and their respective Representatives, successors and assigns, harmless, from any and all indebtedness of Seller to the Seller Noteholders, in consideration of the issuance by Buyer to the Seller Noteholders of the applicable portion of the Aggregate Share Consideration, subject to and in accordance with the terms hereof;
(P) a written consent Option Redemption Agreements duly executed by each Seller and those holders of the Indemnifying Stockholders, in a form reasonably satisfactory stock options of Seller mutually determined by Buyer and Seller prior to Buyer, consenting to the Indemnification Escrow, the allocation thereof as provided in Schedule 1.1, the provisions of Article VI hereof, and the allocation of the Spindle Closing Shares as provided in Schedule 2.3(a)(i)Closing;
(Q) unaudited audited financial statements of Seller for each of the three two fiscal years ended December 31, 2010, 2011 2009 and 20122010 together with an audit report thereon by Xxxx Xxxxx LLP, and financial statements of Seller for the interim period ended September June 30, 20122011, reviewed by Xxxx Xxxxx LLP; and
(R) such other documents or information as Buyer may reasonably request for the purpose of completing its due diligence review of Seller and the Business, including, without limitation, (A) evidencing the accuracy of any of Seller’s representations and warranties, (B) evidencing the performance by Seller, or the compliance by Seller with, any covenant or obligation required to be performed or complied with by Seller pursuant to this Agreement, or (C) otherwise facilitating the consummation or performance of any of the Contemplated Transactions, it being understood and agreed that Buyer’s obligations at the Closing are conditioned upon Buyer’s satisfaction, in its sole discretion, with the results of its due diligence review of Seller and the Business.
(ii) Buyer shall be satisfied in its sole discretion with the results of its due diligence review of Seller and the Business;.
(iii) no breach of any covenant or failure of any representation or warranty made each investment banking firm engaged by Seller;
(iv) absence of any Material Adverse Effect with respect to Seller; and
(v) neither J. Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxx nor Xxxx Xxxxxx Buyer shall have terminated, or given notice of an intention to terminate, his employment or consultancy with Buyer which began prior to the date of this Agreement; and
(vi) no injunctions prohibiting the consummation of approved the Contemplated Transactions.
(b) As a condition to Seller’s obligations at the Closing:
(i) Buyer shall deliver to Seller:
(A) certificates representing the Spindle Augme Closing Shares;
(B) the Xxxx of Sale, executed by Buyer;
(C) the Assignment and Assumption Agreement; executed by Buyer;
(D) the Consultant Employment Agreements, executed by Buyer;
(E) the Escrow Agreement (as defined below) executed by Buyer and Escrow AgentAgent (as defined below);
(F) the Non-Competition Agreements executed by Buyer;
(G) a certificate executed by Buyer as to the accuracy of its representations and warranties as of the Closing and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing;
(HG) a certificate of the Secretary of Buyer certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Buyer and certifying that the execution and delivery of this Agreement and the consummation of the Contemplated Transactions has been approved by all requisite authority and certifying to the incumbency and signatures of the officers of Buyer executing this Agreement and any other document relating to the Contemplated Transactions;
(IH) a certificate as of a date not earlier than the tenth business day prior to the Closing Date as to the good standing of Buyer, executed by the appropriate officials of the State of NevadaDelaware; and
(iiI) no breach such other documents or information as Seller may reasonably request for the purpose of completing its due diligence review of Buyer otherwise facilitating the consummation or performance of any covenant or failure of any representation or warranty made by Buyer;
(iii) no injunctions prohibiting the consummation of the Contemplated Transactions; and, it being understood and agreed that Seller’s obligations at the Closing are conditioned upon Seller’s satisfaction, in its sole discretion, with the results of its due diligence review of Buyer.
(ivii) immediately upon Closing, Seller shall be allotted (A) one seat on satisfied in its sole discretion with the results of its due diligence review of Buyer's board of directors for not less than the remainder of the 2013 fiscal year, and (B) one seat on Buyer's board of advisors.
(c) Buyer shall deliver to the Escrow Agent (also serving as transfer agent to Buyer) instructions as to the issuance of stock certificates representing the shares comprising (i) the Indemnification Escrow, allocated among and issued in the names of the individual Indemnifying Stockholders as provided in Schedule 1.1(or to Seller if required under Section 368(a)(1)(C) of the Code) and (ii) the Spindle Closing Shares, allocated among and issued in the names of the individual Seller Stockholders as provided in Schedule 2.3(a)(i) (or directly to Seller if required under Section 368(a)(1)(C) of the Code); and
(d) If any of the Seller Stockholders are not accredited investors within the meaning of Rule 501 of Regulation D, then Buyer shall deliver to the Seller Stockholders the information required to be delivered to non-accredited investors pursuant to Rule 502 of Regulation D (the “Buyer Offering Materials”), in order for Buyer’s issuance of the Aggregate Share Consideration to be exempt from registration pursuant to Rule 506 of Regulation D and/or Regulation S.
Appears in 1 contract
Samples: Asset Purchase Agreement (Augme Technologies, Inc.)
