Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all, of which may be waived by the Company, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law): (a) the representations and warranties of the Company set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the date hereof and the Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); (b) Trident and the Purchasers shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing Date, and; (c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; (d) the Company shall have delivered, or caused to be delivered, to Purchasers stock certificates representing the Shares, duly endorsed in blank or accompanied by stock transfer powers; (e) there shall have been no change, event, circumstance, development or effect that has had, individually or in the aggregate, a Material Adverse Effect;
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all, all of which may be waived by the Company, in their sole and absolute discretion, Purchasers in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of the Company Seller set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and in each case, as of the date hereof of this Agreement and as of the Closing Date as though made on at and as of the Closing Date, except to the extent where such representations and or warranties relate to expressly speak as of an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) Trident and the Purchasers Seller shall have performed and complied in all material respects with all covenants, obligations and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing Date, and;
(c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the Company shall have delivered, or caused to be delivered, to Purchasers stock certificates representing the Shares, duly endorsed in blank or accompanied by stock transfer powers;
(e) there shall not have been no or occurred any event, change, event, circumstance, development occurrence or effect that has hadcircumstance that, individually or in the aggregate, has had or which could reasonably be expected to have a Material Adverse EffectEffect since the Balance Sheet Date;
(e) Seller shall have obtained those consents listed on Exhibit 9.1(e) in a form reasonably satisfactory to Purchasers and copies thereof shall have been delivered to Purchasers;
(f) Purchasers shall have received all required MLB Approvals;
(g) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted;
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to before the Closing Date, of each of the following conditions (any or all, all of which may be waived by the Company, in their sole and absolute discretion, Purchasers in whole or in part to the extent permitted by applicable Lawpart):
(a) the representations and warranties of the Company Sellers set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the date hereof and the Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) Trident and the Purchasers Sellers shall have performed and complied in all material respects with all obligations and agreements required by in this Agreement to be performed or complied with by them on or prior to before the Closing Date, and;
(c) there shall not have been or occurred any event, condition, circumstance or change since the Balance Sheet Date that has had or would reasonably be expected to have a Material Adverse Effect; provided, however, for the purposes of this Section 8.1(c), Material Adverse Effect shall not include any such event or action that was caused by or resulted from the actions or inactions of Purchasers in breach of the Management Agreement;
(d) no Legal Proceedings shall have been instituted or threatened against any Purchaser or Seller seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be in effect any Law, including any Order by a Governmental Body of competent jurisdiction jurisdiction, restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(de) the Company applicable Seller or Sellers, as the case may be, shall have deliveredobtained (i) any consent, approval, Order or authorization of, or caused registration, declaration or filing with, any Governmental Body required to be deliveredobtained or made by such Seller or Sellers in connection with the execution and delivery of this Agreement or the Management Agreement or the performance of the transactions contemplated herein or therein; and (ii) any consent, waiver or approval required to Purchasers stock certificates representing the Sharesprevent a breach of, duly endorsed in blank or accompanied by stock a default under, or a termination (or post-Closing right of termination) of, any Contract listed on Schedule 8.1(e) or any Permit, or to transfer powers;
(e) there shall have been no change, event, circumstance, development any such Contract or effect that has had, individually or any Permit included in the aggregateAssets, a Material Adverse Effectin each case, in form and substance reasonably satisfactory to Purchasers;
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to Obligations of Purchasers. The obligation obligations of the Purchasers to consummate the transactions contemplated by this Agreement is subject provided for hereby are subject, in the reasonable discretion of the Purchasers, to the fulfillmentsatisfaction, on or prior to the Closing Date, of each of the following conditions (conditions, any or all, of which may be waived by the Purchasers: ------------- ---------------- --------- --------- ----------- Accuride Servicios AISA IASA GIR Company, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of the Company set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified Article II shall be true and correct in all material respects, respects when made and at and as of the date hereof and the Closing Date as though made on the Closing Date, except to the extent if such representations and warranties relate to an earlier date were made at such time (in which case such except that those representations and warranties qualified which are made as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified of a specific date shall be true and correct in all material respects, on and only as of such earlier date);
(b) Trident GIR and the Purchasers IASA shall have performed and complied satisfied in all material respects with all obligations agreements and agreements covenants required by this Agreement hereby to be performed or complied with satisfied by them on or prior to or at the Closing Date, and;
(c) there no Governmental Authority shall not be have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect as of the Closing and which results in (i) a restraint, prohibition or other interference with the ownership or operation by the Purchasers or any Order of their Affiliates of all or any material portion of the business of the Company, (ii) the imposition or confirmation of any material limitations on the ability of the Purchasers effectively to exercise full rights of ownership of the IASA Shares, including, without limitation, the right to vote the IASA Shares on any matters properly presented to the stockholders, (iii) a requirement that the Purchasers or any of their Affiliates divest any securities of the Company or any material part of the Company's business, (iv) of making the transactions contemplated by a Governmental Body of competent jurisdiction restraining, enjoining this Agreement illegal or otherwise prohibiting the consummation of the such transactions contemplated herebyor (v) is reasonably likely to result in a Company Material Adverse Effect (each of (i) through (v), a "SUBSTANTIAL DETRIMENT");
(d) all material Licenses or Consents from any Person, and all filings, registrations and notifications necessary to permit GIR and IASA to consummate the Company transactions contemplated by this Agreement shall have deliveredbeen obtained or made. All such Licenses and Consents which have been obtained shall be on terms that are not reasonably likely, directly or caused to be deliveredindirectly, to Purchasers stock certificates representing the Shares, duly endorsed result in blank or accompanied by stock transfer powersa Substantial Detriment;
(e) no Person who or which is not a party to this Agreement shall have commenced or threatened to commence any Litigation seeking to restrain or prohibit, or to obtain damages in connection with, the transactions contemplated by this Agreement;
(f) from the date of this Agreement, there shall not have been no change, occurred any event, circumstance, development change or effect that has hadcondition that, individually or in the aggregate, has had or could reasonably be expected to have a Company Material Adverse Effect;
(g) the Company shall have received a written consent as well as any other necessary documents from Citibank Mexico, S.
A. to the consummation of the transactions contemplated by this Agreement and the Escrow Agreement; and ------------- ---------------- --------- --------- ----------- Accuride Servicios AISA IASA GIR Company
(h) GIR and IASA shall have delivered the documents required to be delivered by them pursuant to Section 5.02 in form and content reasonably satisfactory to Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Accuride Corp)
Conditions Precedent to Obligations of Purchasers. The obligation obligations of Purchasers to consummate the transactions contemplated by this Agreement Transactions is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all, all of which may be waived by the Company, in their sole and absolute discretion, Purchasers in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of the Company Shareholder set forth in this Agreement or any certificate or other document furnished or to be furnished to Purchasers pursuant to this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respectsrespects (other than the representations and warranties contained in (i) Section 5.1 (organization), (ii) Section 5.4 (capitalization), (iii) Section 5.5 (subsidiaries), (iv) Section 5.23 (related party transactions), (v) Section 5.25 (certain payments), and (vi) Section 5.29 (financial advisors), which representations and warranties shall be true and correct), in each case, as of the date of this Agreement and as of the Closing as though made at and as of the date hereof and the Closing Date as though made on the Closing DateClosing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) Trident Shareholder and the Purchasers Sellers shall have performed and complied in all material respects with all obligations and agreements required by in this Agreement to be performed or complied with by them on or prior to the Closing Date, andand Purchasers shall have received copies of such resolutions and other documents evidencing performance thereof as Purchasers may reasonably request;
(c) since the date hereof, there shall not have been or occurred any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or which could reasonably be expected to have a Material Adverse Effect since the Balance Sheet Date;
(d) no Legal Proceedings shall have been instituted or threatened in writing and received by Sellers or claim or demand made against Shareholder, Sellers or any of the Acquired Subsidiaries or Purchasers, seeking to restrain or prohibit, or to obtain substantial damages with respect to, the consummation of the Transactions, and there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the Company shall have delivered, or caused to be delivered, to Purchasers stock certificates representing the Shares, duly endorsed in blank or accompanied by stock transfer powersTransactions;
(e) there Purchasers shall have been no changereceived a certificate signed by Shareholder and by the Chief Executive Officer of each Seller, eventeach in form and substance reasonably satisfactory to Purchasers, circumstancedated the Closing Date, development or to the effect that has had, individually or each of the conditions specified above in the aggregate, a Material Adverse EffectSections 9.1(a)-(d) have been satisfied in all respects;
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation obligations of Purchasers to consummate the transactions contemplated by this Agreement is Merger at the Closing are subject to the fulfillment, on satisfaction or waiver at or prior to the Closing Date, of each of the following conditions (any or all, of which may be waived by the Company, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law):conditions:
(a) the All representations and warranties of the Company set forth DMFC contained in this Agreement shall be true and correct in all material respects as of the Closing Date as though made on and as of such date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such date, and except that any representation or warranty that is qualified as to by materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the date hereof and the Closing Date as though made on the Closing Date, except respects (giving effect to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier datequalification);
(b) Trident and the Purchasers DMFC shall have performed and complied with the covenants in sub-sections 6.1(b)(i), 6.1(b)(iii), 6.1(b)(iv), 6.1(b)(xvii) and, with respect only to directors of any member of the Del Monte Group who are not officers or employees, 6.1(b)(vii), and DMFC shall have performed and complied with, in all material respects with respects, all obligations other agreements and agreements covenants required by this Agreement to be performed or complied with by them on or DMFC prior to or at the Closing DateClosing, andexcept that any agreement or covenant that is qualified by materiality or Material Adverse Effect shall have been performed and complied with in all respects (giving effect to such qualification);
(c) there No Law or Judgment shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining which prohibits or otherwise prohibiting declares illegal the consummation of Merger or the other transactions contemplated herebyby this Agreement;
(d) The approval of the Company Merger by the stockholders of DMFC shall have delivered, or caused to be delivered, to Purchasers stock certificates representing the Shares, duly endorsed in blank or accompanied by stock transfer powersbeen obtained;
(e) there All waiting periods specified under the HSR Act, and all extensions thereof, the passing of which are necessary for consummation of the Merger, shall have passed;
(f) The Purchasers shall have received from DMFC a certificate, signed by an appropriate officer, as to compliance with the conditions set forth in paragraphs (a) and (b) of this Section 9.1;
(g) The Purchasers shall have received from William R. Sawyers, Proskauer Rose Goetz & Mendelsohn XXX xxd Ballard Spxxx Xxxxxxs & Xxxxxxxxx legal opxxxxxx xx xxxx xxx xxbstance reasonably satisfactory to Purchasers and their counsel with respect to the matters set forth in the first and the third and fourth (except with respect to the Company's Subsidiaries) sentences of Section 4.1, Section 4.2, the first and second sentences of Section 4.3(a), Section 4.3(b) and (c), clauses (i), (ii) and (iv) of Section 4.4 (except with respect to the Company's Subsidiaries), Section 4.6 and the first sentence of Section 4.7 with respect to Proceedings and Judgments;
(h) Since the date of this Agreement, no change or circumstance resulting in a Material Adverse Effect shall have occurred;
(i) All of the conditions to the funding contemplated by the written commitments from the lenders (the "Lenders") with respect to the financings (the "Financings") to be entered into by Sub in connection with the transactions contemplated by this Agreement, copies of which written commitments have been furnished to DMFC, shall have been no changesatisfied in full or waived and such Lenders shall have provided or made available to Sub the cash contemplated by such Financings;
(j) DMFC shall have provided to the Purchasers the statement described in Treasury Regulation Section 1.1445-2(c)(3) certifying that none of the interests in DMFC or the Company are U.S. real property interests for purposes of Section 1445 of the Code. Such statement will be complete, eventaccurate and valid on the Closing Date. If such statement is not received by or on the Closing Date, circumstance, development DMFC shall withhold all amounts required to be withheld by Section 1445 of the Code; and
(k) No Person shall have commenced or effect threatened to commence any actions or proceedings against a member of the Del Monte Group that has had, individually challenges or seeks (or would challenge or seek) the recovery of a material amount of damages in connection with the aggregate, transactions contemplated hereby and that in Purchasers' reasonable judgment presents a Material Adverse Effect;material risk of a material adverse judgment or ruling against such member of the Del Monte Group.
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate effect the transactions contemplated by this Agreement German SPA is subject to the fulfillment, on satisfaction or prior to the Closing Date, of each waiver by Purchasers of the following conditions (any or all, of which may be waived by the Company, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law):conditions:
(a) The representations and warranties of Sellers in this German SPA that are qualified as to materiality shall be true and correct in all respects and the representations and warranties of the Company set forth in this Agreement Sellers that are not qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and in each case, as of the date hereof and at and as of the Closing Date with the same effect as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case had been made at and as of such time, other than representations and warranties qualified that speak as of another specific date or time prior to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall the date hereof (which need only be true and correct in all material respects, on and as of such earlier datedate or time);
(b) Trident All of the terms, covenants and the Purchasers shall have performed and complied in all material respects with all obligations and agreements required by this Agreement conditions to be performed or complied with and performed by them Sellers on or prior to the Closing Date, andDate shall have been complied with or performed in all material respects;
(c) there Purchasers shall not be in effect any Order by a Governmental Body have received certificates of competent jurisdiction restrainingSellers, enjoining or otherwise prohibiting the consummation dated as of the transactions contemplated herebyClosing Date, certifying in such detail as Purchasers may reasonably request that the conditions specified in Sections 7.2(a) and 7.2(b) have been fulfilled;
(d) No action, suit or proceeding shall be pending or threatened by or before any Governmental Authority or pending or threatened by any other Person to enjoin, restrain, prohibit or obtain damages in respect of any of the Company shall have deliveredtransactions contemplated by this German SPA or any Ancillary Agreement, or caused which would be reasonably likely to be delivered, to Purchasers stock certificates representing prevent or make illegal the Shares, duly endorsed in blank consummation of any transactions contemplated by this German SPA or accompanied by stock transfer powersany Ancillary Agreement;
(e) there There shall not have been no changeoccurred since the date hereof any events that have had, event, circumstance, development or effect that has hadare, individually or in the aggregate, reasonably likely to have a Material Adverse Effect;
(f) Purchasers shall have received evidence, reasonably satisfactory to Purchasers, of receipt of all requisite third-party and governmental Consents, including those set forth on Schedule 4.5(c);
(g) Purchasers shall have obtained financing by reputable lenders at reasonable market interest rates and terms and conditions as determined by the Special Committee in sufficient amounts to complete the Transactions, and all funds to be received by Purchasers pursuant to such financing arrangements shall be available pursuant to the terms thereof and all funds contemplated to be received at the Closing Date to fund the Transactions shall have been received or will be made available during the Closing;
(h) The approval of the transactions contemplated by this German SPA by the holders of shares of capital stock of BRKR who are unaffiliated with the Laukien Sellers representing at least a majority of the total votes cast by such holders at a duly held meeting of the BRKR stockholders;
(i) The approval of the transactions contemplated by this German SPA by the holders of shares of capital stock of Purchasers representing at least a majority of the total votes cast at a duly held meeting of the BRKR stockholders;
(j) Sellers 1, Seller 4 and Purchaser 3 shall have entered into the SciTec Real Property Sale and Transfer Agreement and all conditions for the payment of the SciTec Real Property Purchase Price thereunder shall have either been fulfilled or validly waived;
(k) The Special Committee shall have obtained adequate proof that no consent of any spouse of any of the Laukien Sellers is required for the entering into and consummation of this German SPA, or such consent shall have been granted;
(l) The Special Committee shall have obtained adequate proof that there are no claims of any of the Sellers against any of the Group Entities (except for claims under the current service agreements of those Sellers that are employed by a Group Entity and except for the current pension entitlements of Seller 4), in particular, that the claim of Seller 1 against Techneon in the amount of €272,773.10 recorded in Seller 1’s financial statements as of December 31, 2006 shall have been waived by Seller 1;
(m) Bruker Physik and Techneon shall have furnished to Purchasers and Bruker Physik, respectively, a certification in accordance with Treasury Regulation Section 1.1445-2(c) and in the form provided in Treasury Regulation Section 1.897-2(h)(2), in a customary and standard form; and
(n) All Compulsory Shares shall have been transferred to Seller 1, free and clear of any Liens, and the share register of Techneon shall reflect the record and beneficial ownership of such Compulsory Shares by Seller 1.
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all, of which may be waived by the CompanyPurchaser Representatives, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of the Company and the Selling Stockholders set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the date hereof and the Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); and Purchasers shall have received a certificate signed by an authorized officer of the Company and each of the Selling Stockholders, dated the Closing Date, to the foregoing effect;
(b) Trident the Company and the Purchasers Selling Stockholders shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing Date, andand Purchasers shall have received a certificate signed by an authorized officer of the Company and each of the Selling Stockholders, dated the Closing Date, to the foregoing effect;
(c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the Company Selling Stockholders shall have delivered, or caused to be delivered, to Purchasers stock certificates representing the Shares, duly endorsed in blank or accompanied by stock transfer powers;
(e) there shall have been no change, event, circumstance, development or effect that has had, individually or in the aggregate, a Material Adverse Effect;
(f) DCY, DAY and Xxxx Xxxxxx shall have delivered to Purchasers executed employment agreements substantially in the form of Exhibits G-1, G-2 and G-3 hereto, respectively;
(g) the Selling Stockholders and the Company shall have delivered to Purchasers an executed stockholders agreement in the form of Exhibit H hereto (the “Stockholders Agreement”) and an executed registration rights agreement in the form of Exhibit I hereto (the “Registration Rights Agreement”);
(h) all consents, waivers, authorizations and approvals of any Governmental Bodies, and of any other Person, required in connection with the execution, delivery and performance of this Agreement and set forth on Schedule 9.1(h) shall have been duly obtained and shall be in full force and effect on the Closing Date;
(i) Purchasers, and if requested by Purchasers, Purchasers’ or the Company’s lenders, shall have received an opinion dated the Closing Date of Weil, Gotshal & Xxxxxx LLP, counsel to the Company, substantially in the form attached hereto as Exhibit J and an opinion of Morrel, West, Xxxxx, Xxxxxx & Xxxxx, Inc., Oklahoma counsel to the Company and the Selling Stockholders, substantially in the form attached hereto as Exhibit K;
(j) SolarWinds shall have delivered to Purchasers executed letters in substantially the form of Exhibit L hereto;
(k) the Company shall have delivered to Purchasers an executed Intellectual Property Assignment by and between Xxxxx Properties, LLC and the Company in substantially the form of Exhibit M hereto;
(l) the Company shall have delivered to Purchasers an executed Amendment to Lease by and between Xxxxx Properties, LLC and the Company in substantially the form of Exhibit N hereto; and
(m) the Selling Stockholders shall have delivered, or caused to be delivered, to Purchasers an executed statement from each of the Selling Stockholders certifying that such Selling Stockholder is not a foreign person within the meaning of Section 1445 of the Code.
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation of Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each and every of the following conditions (any or all, of which may be waived by the Company, in their sole and absolute discretion, in whole or in part to the extent permitted by applicable Law):conditions:
(a) 10.1.1. the representations and warranties of each of the Company Sellers set forth in Section 5 of this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct (a) in all material respects, respects as of the date of this Agreement and (b) as of the Closing as though made at and as of the date hereof and the Closing Date as though made on the Closing DateClosing, except for such failures to be true and correct as would not have individually or in the aggregate a Material Adverse Effect; except in any case, to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) Trident and 10.1.2. the Purchasers Sellers shall have performed and complied in all material respects with all obligations and agreements required by in this Agreement to be performed or complied with by them on or prior to the Closing Date, and;
10.1.3. the Seller Israel Sub shall have sold, assigned, transferred, conveyed or delivered those Purchased Contracts listed on Schedule 2.3A (ctogether with all related Assumed Liabilities) to the Company under such terms and conditions agreed upon by the parties such that such Purchased Contracts and Assumed Liabilities are acquired at the Closing from the Company (disregarding any third party consents for assignment required but not received by the Closing);
10.1.4. the Sellers shall have entered into and provided the Parent with a copy of an absolute, complete and final release and settlement agreement in the form acceptable to the Parent from any and all actions and/or claims relating to the legal action described in SCHEDULE 10.1.4.
10.1.5. each of the Persons that is entitled to receive any of the Stock Consideration shall have waived any rights with respect to previous options to purchase shares of the Company, as part of his or her execution of agreement to the assignment and transfer of employment to the Purchasers.
(i) there shall be no Legal Proceedings against the Sellers or Purchasers either temporarily or permanently restraining or prohibiting the consummation of the transactions contemplated hereby, and (ii) there shall not be in effect any Order by or any objection from a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting or objecting to the consummation of the transactions contemplated hereby;
(d) 10.1.7. the Company parties hereto shall have deliveredobtained the Consents, approval, order or authorization of, or caused registration, declaration or filing with, any Governmental Body or Third Party, listed in SCHEDULE 10.1.7, required to be deliveredobtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated herein; all in a form reasonably satisfactory to Purchasers, and any waiting periods, including with respect to Purchasers stock certificates representing filing requirements with the Shares, duly endorsed Committee on Foreign Investment in blank or accompanied by stock transfer powersthe United States ("CFIUS") shall have expired;
10.1.8. at least 70% of the Continuing Employees (ecounting the Key Employees as Continuing Employees as well for such purpose) shall have consented to becoming Hired Employees;
10.1.9. there shall not have been no change, event, circumstance, development or effect that has had, individually or in the aggregate, occurred a Material Adverse EffectEffect (which for the avoidance of doubt, shall disregard and not take into consideration any consents required under any Purchased Contract which were not obtained prior to the Closing, and the non-assignment of such permits used for the Business which permits are non-assignable, and the effects thereof);
10.1.10. the Purchasers shall have received all closing deliverables as set forth in SECTION 4.2.1 in form and substance reasonably acceptable to the Purchasers, provided that in the event of a contradiction between the provisions of Section 4.2.1 and this Section 10.1, the provisions of this Section 10.1 shall prevail;
Appears in 1 contract
Conditions Precedent to Obligations of Purchasers. The obligation of the Purchasers to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all, all of which may be waived by the Company, in their sole and absolute discretion, Purchasers in whole or in part to the extent permitted by applicable Lawlaw):
(a) the all representations and warranties of the Company set forth in this Agreement qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified Selling Stockholders contained herein shall be true and correct in all material respects, at and as of the date hereof and the Closing Date with the same effect as though made on the Closing Date, except to the extent such those representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality or Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, on had been made again at and as of such earlier date)that time;
(b) Trident stock certificates representing 100% of the Shares, duly endorsed in blank or accompanied by stock transfer powers and the Purchasers with all requisite stock transfer tax stamps attached, shall have performed been, or shall at the Closing be, validly delivered and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by them on or prior transferred to the Closing DatePurchasers, andfree and clear of any and all Liens;
(c) no Legal Proceedings shall have been instituted or threatened or claim or demand made against either of the Selling Stockholders or either the Purchasers seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be in effect any Order by a Governmental Body governmental body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the Company Redback shall have deliveredhave, or at its sole expense, filed and caused to be delivered, to Purchasers stock certificates representing declared effective an S-3 Registration Statement (the “S-3 Registration Statement”) registering the sale of the Shares, duly endorsed in blank or accompanied by stock transfer powers;
(e) there the Purchasers shall have been no changedetermined that the Rights Agreement, eventdated as of June 12, circumstance2001, development or effect that has hadas amended on May 21, individually or 2002, October 2, 2003 and January 5, 2004, between Redback, and US Stock Transfer Corporation, as Rights Agent does not limit the ability of the parties hereto to consummate the Closing;
(f) the Board of Directors of Redback shall have approved the transactions contemplated by this agreement and shall have taken irrevocable action sufficient to render inapplicable to the transactions contemplated hereby the restrictions on “business combinations” (as defined in Section 203 of the aggregate, a Material Adverse Effect;General Corporation Law of the State of Delaware (the “DGCL”)) as set forth in Section 203 of the DGCL; and
(g) Legal counsel to the Selling Stockholders reasonably satisfactory to the Purchasers shall have delivered to the Purchasers an opinion covering Selling Stockholders’ representations set forth in 4.3 and 4.4.
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