Conditions in Favour of the Purchaser. The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions to be fulfilled or performed at or prior to Closing, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser in its sole discretion: (a) The Fundamental Representations of the Seller and the Seller Parent shall be true and correct in all but de minimis respects as of the Closing Date as if such Fundamental Representations had been made on the Closing Date. All other representations and warranties of the Seller and the Seller Parent contained in this Agreement that are qualified as to materiality shall be true and correct in all respects as of the Closing Date as if such representations and warranties had been made on the Closing Date. The remaining representations and warranties of the Seller and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if such representations and warranties had been made on the Closing Date and the Seller shall have delivered a certificate of a senior officer of each of the Seller and the Seller Parent confirming the foregoing. (b) The Seller shall have fulfilled, performed or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller shall have executed and delivered a certificate of a senior officer to that effect. (c) All Required Consents and Authorizations shall have been obtained on terms acceptable to the Purchaser, acting reasonably. (d) All Payout Letters shall have been obtained on terms acceptable to the Purchaser, acting reasonably. (e) No action or proceeding shall be pending or threatened by any Governmental Authority in any jurisdiction, to enjoin, restrict or prohibit (i) any of the transactions contemplated by this Agreement, or (ii) the right of the Purchaser to acquire or own the Purchased Assets; or the right of the Purchaser to operate the Purchased Business after Closing on substantially the same basis as currently operated. (f) There shall not have occurred a Material Adverse Effect. (g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy. (h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement. (i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment. (j) The Seller or the Seller Parent, as applicable, shall have delivered or caused to be delivered to the Purchaser the following: (i) certified copy of a resolution of the board of directors of the Seller Parent approving the entering into of this Agreement; (ii) certified copies of (A) the articles and by-laws of the Seller, (B) resolutions of the shareholders or the board of directors of the Seller, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures, all in form and substance satisfactory to the Purchaser, acting reasonably; (iii) a certificate of status, compliance or like certificate with respect to the Seller issued by appropriate government officials of its jurisdiction of incorporation; (iv) a purchase certificate issued by the Ontario Workplace Safety and Insurance Board in respect of the Seller and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at the Closing Date, the relevant board has no claim against the Seller in respect of any amounts payable under the relevant workers’ compensation legislation; (v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation; (vi) all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably required to transfer the Purchased Assets to the Purchaser with good title, free and clear of all Liens other than Permitted Encumbrances; (vii) evidence, satisfactory to the Purchaser, of the payment of outstanding amounts pursuant to the Payout Letters; (viii) a non-competition, non-solicitation and non-disparagement agreement executed by the Seller Parent and the Seller, substantially in the form set out in Exhibit 10.4(i)(ix) (the “Non-Competition Agreement”); (ix) the Escrow Agreement duly executed by the Seller; (x) the Master Services Agreements duly executed by the Seller; (xi) the Transition Services Agreement executed by the Seller; and (xii) the Consent and No Interest Letters.
Appears in 1 contract
Conditions in Favour of the Purchaser. 6.01 The Purchaser’s obligation of the Purchaser to complete the transactions contemplated by in this Agreement is subject to satisfaction of the following conditions to precedent on or before the Closing Date provided that any such date may be fulfilled or performed at or prior to Closingextended by the mutual agreement of the applicable Purchaser and the Vendor, and which conditions are inserted for the exclusive sole benefit of the Purchaser and may be waived, in whole or in part, waived only by the Purchaser by notice in its sole discretionwriting to the Vendor on or before the Closing Date, as applicable:
(a) The Fundamental Representations the representations and warranties of the Seller and the Seller Parent Vendor shall be true and correct in all but de minimis respects as of at the Closing Date with the same force and effect as if made at and as of such Fundamental Representations had been made on time and the Closing Date. All other representations and warranties Vendor shall deliver to the Purchaser (or Designated Purchaser as applicable) a certificate signed by a representative of the Seller Vendor to that effect (provided that acceptance of such evidence and the Seller Parent contained in this Agreement that are qualified as to materiality shall be true and correct in all respects as completion of the Closing Date as if transaction contemplated hereunder shall not be a waiver of such representations and warranties had been made on the Closing Date. The remaining representations and warranties of the Seller and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if such representations and warranties had been made on the Closing Date and the Seller shall have delivered a certificate of a senior officer of each of the Seller and the Seller Parent confirming the foregoing.warranties);
(b) The Seller shall have fulfilledall consents, performed approvals or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller shall have executed and delivered a certificate of a senior officer to that effect.
(c) All Required Consents and Authorizations waivers for each Assigned Contract shall have been obtained on terms acceptable to the applicable Purchaser, acting reasonably., or an Assignment Order will have been obtained in respect thereof. All such consents, approvals, waivers or Assignment Orders will be in force and will not have been modified, rescinded, appealed or stayed;
(c) the Vendor shall have complied with and performed all of its covenants and obligations contained in this Agreement to be performed by it before or by the Closing Date; and
(d) All Payout Letters shall have been obtained on terms acceptable to the Purchaser, acting reasonably.
(e) No action or proceeding shall be pending or threatened by any Governmental Authority in any jurisdiction, to enjoin, restrict or prohibit (i) any of the transactions contemplated by this Agreement, or (ii) the right of the Purchaser to acquire or own the Purchased Assets; or the right of the Purchaser to operate the Purchased Business after Closing on substantially the same basis as currently operated.
(f) There shall not have occurred a Material Adverse Effect.
(g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement.
(i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment.
(j) The Seller or the Seller Parent, as applicable, shall have delivered or caused to be delivered to the Purchaser the following:
(i) certified copy of a resolution of the board of directors of the Seller Parent approving the entering into of this Agreement;
(ii) certified copies of (A) the articles and by-laws of the Seller, (B) resolutions of the shareholders or the board of directors of the Seller, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures, all in form and substance satisfactory to the Purchaser, acting reasonably;
(iii) a certificate of status, compliance or like certificate with respect to the Seller issued by appropriate government officials of its jurisdiction of incorporation;
(iv) a purchase certificate issued by the Ontario Workplace Safety and Insurance Board in respect of the Seller and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at before the Closing Date, the relevant board has no claim against the Seller in respect of any amounts payable under the relevant workers’ compensation legislation;
(v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation;
(vi) Vendor shall have delivered all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably items which it is required to transfer the Purchased Assets deliver to the Purchaser with good title, free and clear pursuant to Section 11.01.
6.02 In the event that any of all Liens other than Permitted Encumbrances;
(vii) evidence, satisfactory to the foregoing conditions are not fulfilled or waived by the applicable Purchaser on or before the Closing Date this Agreement may be terminated at the Purchaser, of the payment of outstanding amounts pursuant to the Payout Letters;
(viii) a non-competition, non-solicitation and non-disparagement agreement executed by the Seller Parent and the Seller, substantially ’s option in the form set out in Exhibit 10.4(i)(ix) (the “Non-Competition Agreement”);
(ix) the Escrow Agreement duly executed by the Seller;
(x) the Master Services Agreements duly executed by the Seller;
(xi) the Transition Services Agreement executed by the Seller; and
(xii) the Consent and No Interest Lettersaccordance with Section 9.01.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conditions in Favour of the Purchaser. The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions to be fulfilled or performed at or prior to Closing, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser in its sole discretion:
(a) The Fundamental Representations of the Seller and the Seller Parent shall be true and correct in all but de minimis respects as of the Closing Date as if such Fundamental Representations had been made on the Closing Date. All other representations and warranties of the Seller and the Seller Parent contained in this Agreement that are qualified as and in any Acquisition Agreement to materiality which it is a party shall be true and correct in all respects as of on the Closing Date with the same force and effect as if such representations and warranties had been made on the Closing Date. The remaining representations and warranties of the Seller and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if such representations and warranties had been made on the Closing Date date and the Seller shall have executed and delivered a certificate of a senior officer of each of the Seller and the Seller Parent confirming the foregoingto that effect.
(b) The Seller shall have fulfilled, performed or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller shall have executed and delivered a certificate of a senior officer to that effect.
(c) All Required required Consents and Authorizations shall have been obtained on terms acceptable to the Purchaser, acting reasonably.
(d) All Payout Letters The Purchaser shall have been obtained on terms acceptable to the Purchaser, acting reasonablyreceived Shareholder Approval.
(e) The Purchaser shall have received CSE Approval.
(f) The CSE shall have approved (or conditionally approved) for listing and posting for trading the Common Shares issued to the Seller and any Common Shares underlying the NVPS, subject only to satisfaction by the Seller of customary post-closing conditions imposed by the CSE in similar circumstances.
(g) Since the date of the LOI, there shall not have occurred a Material Adverse Change in respect of any of the Corporations.
(h) No action or proceeding shall be pending or threatened by any Governmental Authority Person (other than the Seller, the Purchaser, any Corporation or any of their respective Affiliates) in any jurisdiction, to enjoin, restrict or prohibit prohibit: (i) any of the transactions contemplated by this Agreement, or ; (ii) the right of the Purchaser to acquire or own the Purchased AssetsShares; or (iii) the right of the Purchaser any Corporation to operate the Purchased its Business after Closing on substantially the same basis as currently operated.
(f) There shall not have occurred a Material Adverse Effect.
(g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement.
(i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment.
(j) The Seller or the Seller Parent, as applicable, shall have delivered or caused to be delivered to the Purchaser the following:
(i) certified copy share certificates representing the Purchased Shares in transferable form and accompanied by all instruments duly executed and delivered that may be necessary or desirable for the Purchaser to acquire good and valid title to the Purchased Shares free and clear of a resolution of the board of directors of the Seller Parent approving the entering into of this Agreementall Liens;
(ii) with respect to each Corporation, certified copies of of: (A) the articles and by-laws of the Seller, Corporation; (B) resolutions of the shareholders or the board of directors of the SellerCorporation, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, ; and (C) a list of the officers and directors authorized to sign agreements on behalf of the Corporation together with their specimen signatures, ; all in form and substance satisfactory to the Purchaser, acting reasonably;
(iii) a certificate of status, compliance or like certificate with respect to the Seller each Corporation issued by appropriate government officials of in its jurisdiction of incorporationincorporation and each jurisdiction in which the Corporation carries on its business as set out in Section 3.3(a) of the Disclosure Letter;
(iv) a purchase certificate issued by evidence, satisfactory to the Ontario Workplace Safety and Insurance Board in respect Purchaser, acting reasonably, of the Seller release and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at the Closing Date, the relevant board has no claim against the Seller in respect discharge of any amounts payable under the relevant workers’ compensation legislation;
(v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation;
(vi) all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably required to transfer the Purchased Assets to the Purchaser with good title, free and clear of all Liens other than Permitted Encumbrances;
(v) a certificate of a senior officer of each hosting provider addressed to the relevant Corporation and dated the Closing Date certifying that: (A) the Corporation owns the Cloud Computing Assets that are being hosted by that hosting provider; (B) to the knowledge of the hosting provider, such Cloud Computing Assets are owned by the Corporation free and clear of all Liens; and (C) the hosting provider has no knowledge of any other Person that may have an interest in any of the Cloud Computing Assets, in a form acceptable to the Purchaser acting reasonably;
(vi) with respect to each of Xxxxxxx and Cunning, a certificate of the registered agent of the Corporation addressed to the Purchaser and dated the Closing Date certifying that: (A) the share certificates representing the Purchased Shares are in its possession; and (B) it is not aware of any Liens over the Purchased Shares, in a form acceptable to the Purchaser acting reasonably;
(vii) evidence, satisfactory a resignation effective as at the Closing from each director and officer of each Corporation specified by the Purchaser in writing at least three (3) Business Days prior to the Purchaser, of the payment of outstanding amounts pursuant to the Payout LettersClosing;
(viii) a non-competition, non-solicitation and non-disparagement agreement executed by releases in favour of the Seller Parent and the Seller, applicable Corporation substantially in the form set out in Exhibit 10.4(i)(ixSchedule D hereto, with such amendments thereto as may be acceptable to the Parties, from each of the Persons referred to in Section 6.2(i)(vii) (and, to the “Non-Competition Agreement”)extent not included therein, the Seller;
(ix) the Escrow Agreement duly executed by original certificate representing the SellerConvertible Note for cancellation;
(x) duly executed copies of the Master Restated Convertible Note, the Cunning Operations Agreement, the Exchange Agreement, the Services Agreements duly Agreement(s), and the Coattail Agreement, in each case executed by the parties thereto other than the Purchaser; and
(xi) such documents, agreements and undertakings, xxxx completed and executed by the Seller;
(xi) , as the Transition Services Agreement executed by Purchaser may reasonably request in connection with the Seller; and
(xii) issuance of the Consent and No Interest LettersRelevant Securities.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions in Favour of the Purchaser. The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions to be fulfilled or performed at or prior to Closingthe Closing Date, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser Purchaser, in its sole discretion:
(a) The Fundamental Representations of the Seller and the Seller Parent shall be true and correct in all but de minimis respects as of the Closing Date as if such Fundamental Representations had been made on the Closing Date. All other representations and warranties of the Seller and the Seller Parent contained in this Agreement that are qualified as to materiality shall be true and correct in all respects as of the Closing Date as if such representations and warranties had been made on the Closing Date. The remaining representations and warranties of the Seller and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of on the Closing Date with the same force and effect as if such representations and warranties had been made on the Closing Date and the Seller shall have delivered a certificate as of a senior officer of each of the Seller and the Seller Parent confirming the foregoing.such date;
(b) The Seller shall have fulfilled, performed or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller shall have executed and delivered a certificate of a senior officer to that effect.;
(c) All Required Consents and Authorizations No motion, action or proceedings shall have been obtained on terms acceptable be pending by or before a Governmental Authority to restrain or prohibit the Purchaser, acting reasonably.completion of the transaction contemplated by this Agreement; and
(d) All Payout Letters The Seller shall have been obtained on terms acceptable to the Purchaser, acting reasonably.
(e) No action or proceeding shall be pending or threatened by any Governmental Authority in any jurisdiction, to enjoin, restrict or prohibit (i) any of the transactions contemplated by this Agreement, or (ii) the right of the Purchaser to acquire or own the Purchased Assets; or the right of the Purchaser to operate the Purchased Business after Closing on substantially the same basis as currently operated.
(f) There shall not have occurred a Material Adverse Effect.
(g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement.have:
(i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment.
either: (jA) The Seller or the Seller Parent, as applicable, shall have delivered or caused to be delivered to the Purchaser (or, as the following:
Purchaser may otherwise direct), certificates representing the Purchased Debt registered in the name of Jayvee & Co. in its capacity as custodian for the Funds, accompanied by a duly executed form of transfer acceptable to the Trustee, or (iB) certified copy of a resolution otherwise caused the transfer of the board of directors Purchased Debt from the Seller to the Purchaser to be properly evidenced and registered on the books of the Seller Parent approving the entering into of this Agreement;Trustee; and
(ii) certified copies of (A) the articles and by-laws of the Seller, (B) resolutions of the shareholders delivered or the board of directors of the Seller, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, and (C) a list of the officers and directors authorized caused to sign agreements together with their specimen signatures, all in form and substance satisfactory to the Purchaser, acting reasonably;
(iii) a certificate of status, compliance or like certificate with respect to the Seller issued by appropriate government officials of its jurisdiction of incorporation;
(iv) a purchase certificate issued by the Ontario Workplace Safety and Insurance Board in respect of the Seller and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at the Closing Date, the relevant board has no claim against the Seller in respect of any amounts payable under the relevant workers’ compensation legislation;
(v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation;
(vi) all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably required to transfer the Purchased Assets be delivered to the Purchaser with good title(or, free and clear of all Liens as the Purchaser may otherwise direct) any other than Permitted Encumbrances;
(vii) evidence, satisfactory to related documentation as the Purchaser, of the payment of outstanding amounts pursuant to the Payout Letters;
(viii) a non-competition, non-solicitation and non-disparagement agreement executed by the Seller Parent and the Seller, substantially in the form set out in Exhibit 10.4(i)(ix) (the “Non-Competition Agreement”);
(ix) the Escrow Agreement duly executed by the Seller;
(x) the Master Services Agreements duly executed by the Seller;
(xi) the Transition Services Agreement executed by the Seller; and
(xii) the Consent and No Interest LettersTrustee may reasonably prescribe or require.
Appears in 1 contract
Samples: Debt Repurchase Agreement
Conditions in Favour of the Purchaser. The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions to be fulfilled or performed at or prior to Closing, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser in its sole discretion:
(a) The Fundamental Representations representations and warranties of the Seller Sellers contained in this Agreement and the Seller Parent in any Acquisition Agreement to which he or it is a party shall be true and correct in all but de minimis respects as of on the Closing Date as if such Fundamental Representations had been made on with the Closing Date. All other representations same force and warranties of the Seller and the Seller Parent contained in this Agreement that are qualified as to materiality shall be true and correct in all respects as of the Closing Date effect as if such representations and warranties had been made on the Closing Date. The remaining representations and warranties as of the Seller such date and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if such representations and warranties had been made on the Closing Date and the Seller Sellers shall have executed and delivered a certificate of a senior officer of each of the Seller and the Seller Parent confirming the foregoingto that effect.
(b) The Seller Sellers shall have fulfilled, performed or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which he or it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller Sellers shall have executed and delivered a certificate of a senior officer to that effect.
(c) All Required Any required Consents and Authorizations from Governmental Authorities in the respective jurisdictions of incorporation of the Sellers shall have been obtained on terms acceptable to the Purchaser, acting reasonably. The Cloud Computing Assets shall be free and clear of all Liens.
(d) All Payout Letters The CSE shall have been obtained on terms acceptable approved (or conditionally approved) for listing and posting for trading the Common Shares issuable upon exchange of any NVPS, subject only to satisfaction by the Purchaser, acting reasonablyPrincipal of customary post-closing conditions imposed by the CSE in similar circumstances.
(e) No action or proceeding shall be pending or threatened by any Governmental Authority Person (other than the Purchaser, any Seller or any of their respective Affiliates) in any jurisdiction, to enjoin, restrict or prohibit prohibit: (i) any of the transactions contemplated by this Agreement, ; or (ii) the right of the Purchaser to acquire or own the Purchased Cloud Computing Assets; or the right of the Purchaser to operate the Purchased Business after Closing on substantially the same basis as currently operated.
(f) There shall not have occurred a Material Adverse Effect.
(g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement.
(i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment.
(j) The Seller or the Seller Parent, as applicable, Sellers shall have delivered or caused to be delivered to the Purchaser the following:
(i) certified copy all deeds, conveyances, transfers and assignments and any other instruments necessary, reasonably required or desirable to transfer the Cloud Computing Assets to the Purchaser with good and marketable title thereto, free and clear of a resolution of the board of directors of the Seller Parent approving the entering into of this Agreementall Liens;
(ii) certified copies of (A) the articles and by-laws of the Seller, (B) resolutions of the shareholders or the board of directors of the Seller, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures, all in form and substance satisfactory to the Purchaser, acting reasonably;
(iii) a certificate of status, compliance or like certificate with respect to the each Seller issued by appropriate government officials of in its jurisdiction of incorporation;
(iviii) a purchase certificate issued by evidence, satisfactory to the Ontario Workplace Safety and Insurance Board in respect Purchaser, acting reasonably, of the Seller release and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at the Closing Date, the relevant board has no claim against the Seller in respect discharge of any amounts payable under the relevant workers’ compensation legislation;
(v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation;
(vi) all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably required to transfer the Purchased Assets to the Purchaser with good title, free and clear of all Liens other than Permitted Encumbrances;
(viiiv) evidence, satisfactory to the Purchaser, a duly executed copy of the payment of outstanding amounts pursuant to the Payout Letters;
(viii) a non-competition, non-solicitation and non-disparagement agreement executed by the Seller Parent and the Seller, substantially in the form set out in Exhibit 10.4(i)(ix) (the “Non-Competition Agreement”);
(ix) the Escrow Agreement duly executed by the Seller;
(x) the Master Services Agreements duly executed by the Seller;
(xi) the Transition Services Exchange Agreement executed by the Sellerparties thereto other than the Purchaser; and
(xiiv) such documents, agreements and undertakings, duly completed and executed by the Consent and No Interest LettersSellers, as the Purchaser may reasonably request in connection with the issuance of the Relevant Securities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions in Favour of the Purchaser. The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions to be fulfilled or performed at or prior to Closing, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser in its sole discretion:
(a) The Fundamental Representations of the Seller and the Seller Parent shall be true and correct in all but de minimis respects as of the Closing Date as if such Fundamental Representations had been made on the Closing Date. All other representations and warranties of the Seller and the Seller Parent contained in this Agreement that are qualified as and in any Acquisition Agreement to materiality which it is a party shall be true and correct in all respects as of on the Closing Date with the same force and effect as if such representations and warranties had been made on the Closing Date. The remaining representations and warranties of the Seller and the Seller Parent contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if such representations and warranties had been made on the Closing Date date and the Seller shall have executed and delivered a certificate of a senior officer of each of the Seller and the Seller Parent confirming the foregoingto that effect.
(b) The Seller shall have fulfilled, performed or complied with in all material respects all covenants contained in this Agreement and in any Acquisition Agreement to which it is a party to be fulfilled, performed or complied with by it at or prior to Closing, and the Seller shall have executed and delivered a certificate of a senior officer to that effect.
(c) All Required required Consents and Authorizations shall have been obtained on terms acceptable to the Purchaser, acting reasonably.
(d) All Payout Letters The CSE shall have been obtained on terms acceptable approved (or conditionally approved) for listing and posting for trading the common shares issuable upon exercise of the Convertible Note, subject only to satisfaction by the Purchaser, acting reasonablySeller of customary post-closing conditions imposed by the CSE in similar circumstances.
(e) The transactions contemplated by this Agreement shall not constitute a “fundamental change” within the meaning of the policies of the CSE and shall not otherwise require the approval of any of the Purchaser’s security holders.
(f) Since the date of this Agreement, there shall not have occurred a Material Adverse Change in respect of the Corporation.
(g) No action or proceeding shall be pending or threatened by any Governmental Authority Person (other than the Seller, the Purchaser, the Corporation or any of their respective affiliates) in any jurisdiction, to enjoin, restrict or prohibit (i) any of the transactions contemplated by this Agreement, or (ii) the right of the Purchaser to acquire or own the Purchased Assets; Shares, or (iii) the right of the Purchaser Corporation to operate the Purchased Business after Closing on substantially the same basis as currently operated.
(f) There shall not have occurred a Material Adverse Effect.
(g) The conditions precedent to the R&W Insurance Policy shall have been satisfied such that the R&W Insurance Policy shall be issued with effect as of the Closing Date. Notwithstanding the foregoing, the Purchaser shall not allow the failure to obtain a Tech E&O Policy and/or the Cyber Insurance Policy (each as defined in the R&W Insurance Policy) from preventing the issuance of the RWI Insurance Policy.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law which has the effect of (i) making any of the transactions contemplated by this Agreement illegal, or (ii) otherwise prohibiting, preventing or restraining the consummation of any of the transactions contemplated by this Agreement.
(i) Each of the Key Employees shall have entered into new employment contracts with the Purchaser in form and substance satisfactory to the Purchaser, acting reasonably and not less than 90% of all of the other Employees shall have accepted the Purchaser’s offer of employment.
(j) The Seller or the Seller Parent, as applicable, shall have delivered or caused to be delivered to the Purchaser the following:
(i) certified copy share certificates representing the Purchased Shares in transferable form and accompanied by all instruments duly executed and delivered that may be necessary or desirable for the Purchaser to acquire good and valid title to the Purchased Shares free and clear of a resolution of the board of directors of the Seller Parent approving the entering into of this Agreementall Liens;
(ii) certified copies of (A) the articles and by-laws of the SellerCorporation, (B) resolutions of the shareholders or the board of directors of the SellerCorporation, as applicable, approving the entering into and completion of the transaction contemplated by this Agreement, and (CD) a list of the officers and directors authorized to sign agreements on behalf of the Corporation together with their specimen signatures, ; all in form and substance satisfactory to the Purchaser, acting reasonably;
(iii) a certificate of status, compliance or like certificate with respect to the Seller Corporation issued by appropriate government officials of in its jurisdiction of incorporationincorporation and each jurisdiction in which the Corporation carries on its business as set out in Section 3.3(a) of the Disclosure Letter;
(iv) a purchase certificate issued by evidence, satisfactory to the Ontario Workplace Safety and Insurance Board in respect Purchaser, acting reasonably, of the Seller release and the Purchased Business and documentation from the workers’ compensation boards in the other jurisdictions in which the Purchased Business is carried on, confirming that as at the Closing Date, the relevant board has no claim against the Seller in respect discharge of any amounts payable under the relevant workers’ compensation legislation;
(v) a financing statement in respect of the sale of Accounts Receivable appropriate for registration under the Personal Property Security Act (Ontario) and any other applicable personal property security legislation;
(vi) all necessary deeds, conveyances, transfers and assignments and any other instruments necessary or reasonably required to transfer the Purchased Assets to the Purchaser with good title, free and clear of all Liens other than Permitted Encumbrances;
(v) a certificate of a senior officer of BNKA Energy, LLP addressed to the Corporation and dated the Closing Date certifying that (A) the Corporation owns the Cloud Computing Assets, (B) to its knowledge, the Cloud Computing Assets are owned by the Corporation free and clear of all Liens, and (C) it has no knowledge of any other Person that may have an interest in any of the Cloud Computing Assets, in a form acceptable to the Purchaser acting reasonably;
(vi) a certificate of the registered agent of the Corporation addressed to the Purchaser and dated the Closing Date certifying that (A) the share certificates representing the Purchased Shares are in its possession and (B) it is not aware of any Liens over the Purchased Shares, in a form acceptable to the Purchaser acting reasonably;
(vii) evidence, satisfactory an executed assignment agreement evidencing the assignment of the Corporation Contracts to the Purchaser, of the payment of outstanding amounts pursuant Corporation in a form acceptable to the Payout LettersPurchaser acting reasonably;
(viii) a non-competition, non-solicitation resignation effective as at the Closing from each director and non-disparagement agreement executed officer of the Corporation specified by the Seller Parent and Purchaser in writing at least three (3) Business Days prior to Closing;
(ix) releases in favour of the Seller, Corporation substantially in the form set out in Exhibit 10.4(i)(ixC from each of the Persons referred to in Section 6.2(h)(viii) (and to the “Non-Competition Agreement”);
(ix) the Escrow Agreement duly executed by extent not included therein, the Seller;
(x) duly executed copies of the Master ROFR Agreement and the Transitional Services Agreements Agreement, in each case executed by the parties thereto other than the Purchaser; and
(xi) such documents, agreements and undertakings, duly completed and executed by the Seller;
(xi) , as the Transition Services Agreement executed by Purchaser may reasonably request in connection with the Seller; and
(xii) issuance of the Consent and No Interest LettersRelevant Securities.
Appears in 1 contract
Samples: Share Purchase Agreement
