Conditions Precedent to Obligations of the Purchasers. The obligation of Purchaser to acquire the Securities is subject, at the Time of Purchase, to the prior or simultaneous satisfaction or waiver of the following conditions: (a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company. (b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder. (c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors. (d) The representations and warranties made by the Company herein shall be true and correct (except for changes expressly provided for by this Agreement) on and as of the Effective Date and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, the Company shall have performed and complied with all agreements and conditions set forth in or contemplated hereunder or in the Basic Documents required to be performed or complied with by it at or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect. (e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser. (f) The Purchaser shall have received duly executed and delivered copies of this Agreement, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel. (g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request. (h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser. (i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser. (j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity. (k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement. (l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sierra Well Service Inc)
Conditions Precedent to Obligations of the Purchasers. The obligation obligations of each Purchaser to acquire purchase the Securities is Shares to be purchased hereunder are subject, at the Time of PurchaseClosing Date, to the prior or simultaneous satisfaction or waiver by it of the following conditions:
(a) The Time If either Purchaser elects to make a filing under the HSR Act within twenty (20) days after the date hereof to obtain clearance of Purchase the exercise of the Warrants, the waiting period applicable to such filing under the HSR Act shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Companyhave expired or been terminated.
(b) The Company At the Closing Date, the Purchasers shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue received certificates representing the Preferred Shares hereunderShares.
(c) The At the Closing Date, the Company shall have duly amended its Certificate of Incorporation and/or Bylawsexecuted and delivered to Xxxx the Warrants in the form attached hereto as Exhibit B, and to GFI the Warrants in the form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.attached hereto as Exhibit C.
(d) The representations and warranties made by the Company herein shall be true and correct (except for changes expressly provided for by this Agreement) in all material respects on the date hereof and on and as of the Effective Closing Date and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, Closing Date and the Company shall have performed and complied in all material respects with all agreements and conditions set forth in or contemplated hereunder or in the Basic Documents required to be performed or complied with by it hereunder at or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectClosing Date.
(e) The Company's stockholders shall have duly executed a valid written consent approving At the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this AgreementClosing Date, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser Purchasers shall have received a certificate, dated the Time Closing Date, signed by the Chief Executive Officer of Purchasethe Company in such capacity and not individually stating that the conditions specified in this Section 4.1 have been satisfied at the Closing Date.
(f) At the Closing Date, of the Purchasers shall have received a certificate, dated the Closing Date, signed by the Secretary or an Assistant Secretary of the Company, Company in such capacity and not individually and certifying (i) certifying as that attached thereto is a true, correct and complete copy of (A) the Charter, (B) the Certificate of Designation, (C) Bylaws and correct (D) resolutions duly adopted by the charter Board of Directors of the Company authorizing the execution and by-laws delivery of the Purchase Documents, the issuance of the Warrants and all other documents to be executed in connection therewith, the issuance and sale of the Shares and the Underlying Shares, and the adoption, execution and filing of the Certificate of Designation, (ii) the incumbency of officers executing this Agreement, and (iii) that attached thereto is a specimen of the share certificate for the Series B Preferred Stock.
(g) No Law or Order shall have been enacted, entered, issued, promulgated or enforced by any Governmental Entity which prohibits or restricts the transactions contemplated by this Agreement. No Governmental Entity shall have notified any party to this Agreement that consummation of the transactions contemplated by this Agreement would constitute a violation of any Law of any jurisdiction or that it intends to commence proceedings to restrain or prohibit such transactions or force divestiture or rescission, unless such Governmental Entity shall have withdrawn such notice and abandoned any such proceedings prior to the time which otherwise would have been the Closing Date.
(h) The Certificate of Designation shall have been duly authorized and adopted by the Board of Directors of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection filed with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the PurchaserSecretary of State of Delaware.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Stock Purchase Agreement (Western Pacific Airlines Inc /De/)
Conditions Precedent to Obligations of the Purchasers. The obligation obligations of each Purchaser to acquire purchase the Securities is Shares to be purchased hereunder are subject, at the Time of PurchaseClosing Date, to the prior or simultaneous satisfaction or waiver by it of the following conditions:
(a) The Time If either Purchaser elects to make a filing under the HSR Act within twenty (20) days after the date hereof to obtain clearance of Purchase the exercise of the Warrants, the waiting period applicable to such filing under the HSR Act shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Companyhave expired or been terminated.
(b) The Company At the Closing Date, the Purchasers shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue received certificates representing the Preferred Shares hereunderShares.
(c) The At the Closing Date, the Company shall have duly amended its Certificate of Incorporation and/or Bylawsexecuted and delivered to Hunt xxx Warrants in the form attached hereto as Exhibit B, and to GFI the Warrants in the form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.attached hereto as Exhibit C.
(d) The representations and warranties made by the Company herein shall be true and correct (except for changes expressly provided for by this Agreement) in all material respects on the date hereof and on and as of the Effective Closing Date and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, Closing Date and the Company shall have performed and complied in all material respects with all agreements and conditions set forth in or contemplated hereunder or in the Basic Documents required to be performed or complied with by it hereunder at or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectClosing Date.
(e) The Company's stockholders shall have duly executed a valid written consent approving At the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this AgreementClosing Date, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser Purchasers shall have received a certificate, dated the Time Closing Date, signed by the Chief Executive Officer of Purchasethe Company in such capacity and not individually stating that the conditions specified in this Section 4.1 have been satisfied at the Closing Date.
(f) At the Closing Date, of the Purchasers shall have received a certificate, dated the Closing Date, signed by the Secretary or an Assistant Secretary of the Company, Company in such capacity and not individually and certifying (i) certifying as that attached thereto is a true, correct and complete copy of (A) the Charter, (B) the Certificate of Designation, (C) Bylaws and correct the charter and by-laws of the Company and (D) resolutions of duly adopted by the Board of Directors attached theretoof the Company authorizing the execution and delivery of the Purchase Documents, the issuance of the Warrants and all other documents to be executed in connection therewith, the issuance and sale of the Shares and the Underlying Shares, and the adoption, execution and filing of the Certificate of Designation, (ii) as to the absence incumbency of proceedings or other action for dissolutionofficers executing this Agreement, liquidation or reorganization of the Company, and (iii) as to the incumbency that attached thereto is a specimen of the officers of share certificate for the Company who Series B Preferred Stock.
(g) No Law or Order shall have executed instrumentsbeen enacted, agreementsentered, and other documents in connection with issued, promulgated or enforced by any Governmental Entity which prohibits or restricts the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.by
Appears in 1 contract
Samples: Stock Purchase Agreement (Gfi Co)
Conditions Precedent to Obligations of the Purchasers. The obligation of Purchaser the Purchasers to acquire consummate the Securities transactions contemplated by this Agreement is subject, at the Time of Purchase, subject to the fulfillment, on or prior or simultaneous satisfaction or waiver to the applicable Closing Date, of each of the following conditions:conditions (any or all of which may be waived by the Purchasers in whole or in part to the extent permitted by applicable law):
(a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The all representations and warranties made by of the Company contained herein qualified as to materiality shall be true and correct, and the representations and warranties of the Company contained herein not qualified as to materiality shall be true and correct (except for changes expressly provided for by this Agreement) on in all material respects, at and as of the Effective Date and Closing Date, except to the Time of Purchase with the same effect as though such representations and warranties had been extent expressly made on and as of the Time of Purchase, an earlier date;
(b) the Company shall have performed and complied in all material respects with all agreements obligations and conditions set forth in or contemplated hereunder or in the Basic Documents covenants required by this Agreement to be performed or complied with by it at the Company on or prior to the Effective Date and/or Closing Date;
(c) there shall not have been or occurred any Material Adverse Change since the Time of Purchase, and the Basic Documents Balance Sheet Date;
(d) no material Legal Proceedings shall have been executed instituted or threatened or claim or demand made against the Company or the Purchasers seeking to restrain or prohibit or to obtain material damages with respect to the consummation of the transactions contemplated hereby, and delivered by all the respective parties thereto and there shall not be in full force and effect.effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) The Company's stockholders the Company shall have duly executed a valid written consent approving paid, or reimbursed the form Purchasers for, all reasonable costs and content of the Basic Documents and the performance thereof expenses provided in Section 10.4 to be borne by the Company and shall have delivered a copy upon consummation of such consent to the Purchaser.transactions contemplated hereby;
(f) The Purchaser the Company shall have received duly executed and delivered copies of this Agreementamended its existing Shareholders' Agreement dated February 22, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.1997;
(g) The Purchaser the Purchasers shall have received an opinion of counsel to the Company been furnished evidence acceptable to the Purchaser addressing Purchasers of the existence and good standing recomposition of the Company, 's Board of Directors as contemplated by the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.Stockholders' Agreement; and
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review each of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company employees shall have paid to or on behalf executed a Confidential Information and Inventions Assignment Agreement in the form of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-EquityEXHIBIT C hereto.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (Hotjobs Com LTD)
Conditions Precedent to Obligations of the Purchasers. The obligation of each Purchaser to acquire purchase the Securities Shares to be purchased by it hereunder is subject, at the Time of PurchaseClosing Date, to the prior or simultaneous satisfaction or waiver of the following conditions:
(a) The Time Such Purchaser shall have received an opinion, addressed to it and dated the Closing Date, of Purchase shall not be later than 5:00 P.M.(i) Winston & Xxxxxx, Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by counsel for the Company, substantially in the form of Exhibit 3-A hereto, and (ii) Miles & Stockbridge, Maryland counsel for the Company, substantially in the form of Exhibit 3-B hereto. In rendering the foregoing opinions, such counsel may rely as to factual matters upon certificates or other documents furnished by officers and trustees of the Company and by government officials, and upon such other documents as such counsel deem appropriate as a basis for such opinion.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The representations and warranties made by the Company and the Operating Partnership herein shall be true and correct (except for changes expressly provided for by this Agreement) in all material respects on and as of the Effective Closing Date and the Time of Purchase with the same effect as though such representations and warranties had has been made on and as of the Time Closing Date after giving effect to the sale of Purchase, the Shares hereunder and the other documents executed in connection with the transactions contemplated herein and the Company and the Operating Partnership shall have performed and complied in all material respects with all agreements and conditions set forth in or contemplated hereunder or in the Basic Documents required to be performed or complied with by it them at or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectClosing Date.
(ec) The Company's stockholders Except as disclosed in the Private Placement Memorandum, there shall not have duly executed a valid written consent approving occurred any Material Adverse Change subsequent to the form and content date of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the PurchaserPrivate Placement Memorandum.
(fd) The Purchaser shall have received duly executed and delivered copies of this AgreementAt the Closing Date, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser shall have received a certificate, dated the Time Closing Date, signed by the President and Chief Financial Officer of Purchasethe Company in their respective capacities and not individually to the effect set forth in Sections 4.1(b) and (c), of and stating that the conditions specified in this Section 4.1 have been satisfied at the Closing Date.
(e) At the Closing Date, such Purchaser shall have received a certificate, dated the Closing Date, signed by the Secretary or an Assistant Secretary of the Company, Company in such capacity and not individually and certifying (i) certifying as that attached thereto is a true, correct and complete copy of (A) the Company's Charter and correct Bylaws, (B) the charter Operating Partnership's Certificate of Limited Partnership and by-laws Amended and Restated Agreement of Limited Partnership, as amended, (C) resolutions duly adopted by the Board of Trustees of the Company authorizing the execution and resolutions delivery of this Agreement by the Company for itself and on behalf of the Board Operating Partnership and the Registration Rights Agreement by the Company and the issuance and sale of Directors attached theretothe Shares and (D) that no proceedings looking toward the liquidation, (ii) as to the absence of proceedings or other action for dissolution, liquidation dissolution or reorganization of the CompanyCompany are pending or contemplated, except as otherwise described in the Private Placement Memorandum; (ii) the incumbency of officers executing this Agreement and the Registration Rights Agreement; and (iii) as to the incumbency that attached thereto is a specimen of the officers of share certificate for the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the PurchaserCommon Shares.
(if) The Such Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and received a review of the Company's properties and operations share certificate in accordance with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the PurchaserSection 2.2(b).
(jg) The Company shall have paid to or on behalf entered into the Registration Rights Agreement for the benefit of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement Purchasers, and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser Purchasers shall have received or be satisfied with the completion copies of all other items described on the current listing of closing documents distributed such Registration Rights Agreement duly executed by the Purchaser to the Company in connection with the execution favor of this Agreementsuch Purchasers.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchasers. The Purchasers' obligation of Purchaser to acquire consummate the Securities transactions contemplated by this Agreement is subject, at the Time of Purchase, subject to the satisfaction at or prior or simultaneous satisfaction or waiver to the Closing Date of each of the following conditions:
(a) The Time Related Transactions shall be consummated before or concurrently with the consummation of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Companytransactions contemplated in this Agreement.
(b) The Company shall have duly amended its Certificate of Incorporation caused to be waived any provisions contained in any employment or severance agreements with Lee X. Xxxxx xxxch provide for a number the payment, accrual or acceleration of authorized any benefit (other than the accelerated vesting of stock options with respect to no more than 67,708 shares of preferred stock sufficient Common Stock plus 255,319 unvested options under the Company's Compensation Reduction Plan (of a total of 351,064 options thereunder)) to issue such person as a result of the Preferred Shares hereunderconsummation of the transactions contemplated -12- 13 hereby; provided however that the Company shall have offered Mr. Xxxxx xx agreement for provision of consulting services following the Closing Date, which agreement shall provide for monthly consulting fees of no less than $6,500 per month and shall be terminable on no less than two months notice.
(c) The Company Purchasers shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance received indications reasonably satisfactory to them from Nasdaq to the Purchasereffect that, includingsubject to consummation of the transactions contemplated hereby and the Related Transactions and subsequent compliance by the Company with applicable requirements for continued quotation, without limitation, allowing for a maximum of seven Persons the Common Stock will not be removed from quotation on the Company's Board Nasdaq National Market on account of Directorsany potential failure to meet applicable minimum tangible net asset requirements.
(d) The No preliminary or permanent injunction or other binding order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, shall be in effect which shall have the effect of preventing the consummation of the transactions contemplated by this Agreement; provided, however, that the parties hereto shall use their best efforts to seek to obtain the removal of such injunction, order, decree or ruling.
(e) All representations and warranties made by of the Company herein contained in this Agreement shall be true and correct (except for changes expressly provided for by this Agreement) on in all material respects at and as of the Effective Closing Date and the Time of Purchase with the same effect as though made at such time (except where such representations and warranties had been made on and speak as of the Time of Purchasean earlier date), and the Company shall have performed and complied in all material respects with all agreements covenants, obligations and conditions set forth in or contemplated hereunder or in the Basic Documents required by this Agreement to be performed or complied with by it at or prior to or on the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the PurchaserClosing Date.
(f) The Purchaser Stockholders of the Company holding a majority of the outstanding shares of Common Stock shall have received duly executed approved the issuance and delivered copies sale of this Agreement, the Loan Agreements Shares and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities Underlying Shares as provided herein and a Board of Directors meeting the transactions contemplated by the Basic Documents Board Composition Requirement shall be reasonably satisfactory to the Purchaser and its counselhave been duly established.
(g) The Purchaser Company shall have received an opinion duly executed and delivered the Conversion Agreement substantially in the form of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may requestExhibit 2(d) hereto.
(h) The Purchaser Lee X. Xxxxx, Xxne L. Sxxxx, Xxymentech Merchant Services, Inc. and First USA Financial (the -13- 14 "Principal Stockholders") shall have received executed and delivered a certificate, dated voting agreement reasonably satisfactory to the Time of Purchase, parties thereto providing for maintenance of the Secretary or an Assistant Secretary Board Composition Requirement for a period ending on the earlier of (1) the second anniversary of the Closing Date and (2) such time as the Principal Stockholders collectively beneficially own less than 75% of the number of shares of the Company, 's Common Stock beneficially owned as of the date hereof.
(i) certifying as true, complete All corporate and correct other proceedings required to carry out the charter transactions contemplated by this Agreement and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, all instruments and other documents in connection with the relating to such transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be reasonably satisfactory in form and substance to Sullxxxx & Xromxxxx, xxunsel to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related theretoPurchasers, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company Purchasers shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement been furnished with such instruments, documents and opinions as such counsel shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equityreasonably requested.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchasers. The obligation of Purchaser the Purchasers to acquire consummate the Securities transactions contemplated by this Agreement is subject, at the Time of Purchase, subject to the fulfillment, on or prior or simultaneous satisfaction or waiver to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by the Purchasers in whole or in part to the extent permitted by applicable Law):
(a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The representations and warranties made by of the Company herein Sellers and the Sellers’ Parent set forth in Article V and in the other Seller Documents qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (except for changes expressly provided for by this Agreement) in which case such representations and warranties qualified as to materiality 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) the Effective Date Sellers and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, the Company Sellers’ Parent shall have performed and complied in all material respects with all obligations and agreements and conditions set forth in or contemplated hereunder or in the Basic Documents required by this Agreement to be performed or complied with respectively by it at them on or prior to the Effective Date and/or Closing Date;
(c) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the Time consummation of Purchase, and the Basic Documents shall have been executed and delivered by all transactions contemplated hereby or imposing adverse conditions on the respective parties thereto and transaction or on any of the Purchasers or any of their Affiliates;
(d) (i) each of the Company Concessions shall be in full force and effect.
effect and (eii) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this Agreement, the Loan Agreements OSIPTEL Certification (and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete true and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, copy thereof);
(iie) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instrumentsall approvals, agreements, amendments, consents and other documents in connection with the transactions contemplated hereby or by the Basic Documentswaivers that are listed on Schedule 8.1(e) shall have been received, and (iv) covering such other matters, and with such other attachments thereto, as the executed counterparts thereof shall have been delivered to Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance at or prior to the Purchaser.Closing;
(if) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of from the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution date of this Agreement., there shall not have occurred any event or events that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect; and
(lg) The waiting period under each of the HSR Act and the rules and regulations promulgated thereunder applicable closing deliveries set forth in Section 4.2 shall have been delivered to the transactions contemplated hereunder shall have expired or been terminatedPurchasers.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchasers. The obligation ----------------------------------------------------- of Purchaser the Purchasers to acquire consummate the Securities transactions contemplated by this Agreement is subject, at the Time of Purchase, subject to the fulfillment, on or prior or simultaneous satisfaction or waiver to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by URI in whole or in part to the extent permitted by applicable Law):
(a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The all representations and warranties made by of the Company Sellers contained herein shall be true and correct (except for changes expressly provided for by this Agreement) on as of the date hereof; and all representations and warranties of the Sellers contained herein that are qualified as to materiality shall be true and correct, and the representations and warranties of the Sellers contained herein not qualified as to materiality shall be true and correct in all material respects, at and as of the Effective Closing Date and the Time of Purchase with the same effect as though such those representations and warranties had been made on again at and as of that time;
(b) the Time of Purchase, the Company Sellers shall have performed and complied in all material respects with all agreements obligations and conditions set forth in or contemplated hereunder or in the Basic Documents covenants required by this Agreement to be performed or complied with by it at them on or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents Closing Date;
(c) URI shall have been executed furnished with certificates (dated the Closing Date and in form and substance reasonably satisfactory to URI) from each Seller certifying as to the fulfillment of the conditions specified in Sections 7.1(a) and 7.1(b) hereof;
(d) certificates, duly endorsed in blank or accompanied by stock transfer powers and with all requisite stock transfer tax stamps attached, representing 100% of the Shares shall have been, or shall at the Closing be, validly delivered by and transferred to URI, free and clear of any and all the respective parties thereto and shall be in full force and effect.Liens;
(e) The Company's stockholders URNJ shall have received the Xxxx of Sale, duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.ESC;
(f) The Purchaser URI shall have received duly a copy of each of the Escrow Agreements, executed by the Sellers and delivered the Escrow Agent;
(g) URI shall have received executed copies of this Agreement, (i) each of the Loan Agreements and Leases with Affiliates of the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents Sellers (together with all other documents reasonably requested by the Purchaser a written agreement of LPC in connection therewith form and all proceedings taken substance satisfactory to URI with respect to LPC's provision of credit support in connection with the issuance matters set forth in Section 17(c) of the Securities form of Lease), (ii) memoranda of lease in form suitable for recording with relevant Governmental Bodies, and (iii) the transactions contemplated by the Basic Documents shall be reasonably satisfactory assignments of leases, landlord's consents to assignment and estoppel certificates with respect to the Purchaser and its counsel.Company Properties as indicated on Schedule 7.1(g), in each case, in substantially the forms attached as Exhibit K hereto; ---------
(gh) The Purchaser URI shall have received copies of the Non-Competition Agreement in substantially the form of Exhibit F hereto (the "Non-Competition --------- --------------- Agreement"), executed by each Stockholder, ESC and each of the other parties named therein;
(i) URI shall have received an executed copy of the Consulting Agreement in substantially the form of Exhibit G hereto between URNJ and --------- LPC (the "Consulting Agreement"); --------------------
(j) URI shall have received the opinion of Xxxxxx & Xxxxxxx, counsel to the Company acceptable Sellers, addressed to URI, in substantially the Purchaser addressing the existence and good standing form of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.Exhibit H --------- hereto;
(hk) The Purchaser shall have received a certificate, dated the Time of Purchase, of applicable waiting period (and any extensions thereof) under the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as HSR Act with respect to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated;
(l) URI shall have obtained all consents and waivers referred to in Section 5.3 hereof with respect to the transactions contemplated by this Agreement and the other Purchaser Documents;
(m) there shall not have been or occurred any Material Adverse Change;
(n) no Legal Proceedings shall have been instituted or threatened or claim or demand made against the Stockholders, the Purchasers or any of the Acquired Companies 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 of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(o) each of the Sellers shall have provided URI with an affidavit of non-foreign status that complies with Section 1445 of the Code;
(p) URI shall have received the written resignations of each director and officer of the Stock Companies;
(q) URI shall have received releases, in the form of Exhibit I hereto, --------- executed by each Stockholder and each officer or director of the Acquired Companies;
(r) URI shall have received a copy of the URI Stock Agreement executed by each Seller receiving shares of URI Common Stock hereunder;
(s) URI shall have received evidence satisfactory to it that all Contracts between any of the Stock Companies and any of their Affiliates shall have been fully discharged, terminated as of the Closing without any further liability (contingent or otherwise) of the Purchasers, the Surviving Corporations or any of the Stock Companies thereunder;
(t) URI shall have received certificates of good standing with respect to each of the Acquired Companies issued by the Secretary of State or comparable official of their respective jurisdictions of organization and for each jurisdiction in which they are qualified to do business as a foreign corporation;
(u) the SMSV Certificate shall have been filed with the SMSV Secretaries of State;
(v) the HR Certificate shall have been filed with the HR Secretaries of State;
(w) URI shall have received a certificate of insurance evidencing the insurance coverage for the Purchaser Insured Parties as described in Section 6.11 of this Agreement; and
(x) URI shall have received such other documents as URI reasonably requested.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchasers. The obligation of Purchaser the Purchasers to acquire the Securities on the Funding Date is subject, at the Time of Purchase, subject to the prior or simultaneous satisfaction or waiver each of the following conditionsfollowing:
(a) The Time accuracy as of Purchase shall not be later than 5:00 P.M.the Closing Date of each and every representation and warranty of the Seller, Houstoneach Guarantor, Texas timeand the Senior Loan Agent made in this Agreement or any other Basic Document, on May 15or in any certificate delivered to the Purchasers pursuant to or in connection with this Agreement, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so and receipt by the CompanyPurchasers of a Certificate executed by a duly Responsible Officer, dated as of the Funding Date, certifying that each of the representations and warranties of the Seller and each Guarantor made in this Agreement or any other Basic Document are true and correct as of the Funding Date, and that the Seller and each Guarantor has performed to date all of its respective covenants and agreements under the Basic Documents.
(b) The Company shall have duly amended its Certificate absence as of Incorporation to provide for the Closing Date and the Funding Date of a number Default or Event of authorized shares Default hereunder or an "Event of preferred stock sufficient to issue Default" under the Preferred Shares hereunderSenior Credit Agreement or any Default hereunder the Senior Loan Documents that has triggered a cure period.
(c) The Company performance by the Seller of its respective obligations to be performed hereunder on or before the Funding Date.
(d) The satisfaction of each of the following conditions as of or prior to the Closing Date:
(i) The Purchasers (or the Trustee, where appropriate) shall have duly amended its Certificate of Incorporation and/or Bylawsreceived the following, each in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum Purchasers and in sufficient counterparts:
(A) Duly executed counterparts of seven Persons on this Agreement and the Company's Board of DirectorsIndenture signed by all the parties hereto and thereto.
(dB) The representations duly executed Financing Agreement, Structuring Fee Agreement, Guaranty Agreements, Subordination Agreement and warranties made by the Company herein shall be true and correct (except for changes expressly provided for by this Registration Rights Agreement) on and , dated as of the Effective Closing Date in form and substance satisfactory to Purchasers.
(C) Duly executed counterparts of the Collateral Documents (including without limitation UCC-1 Financing Statements).
(D) Certificates of good standing as to the Seller and each Guarantor issued by the Secretary of State of their respective states of incorporation or formation.
(E) The duly executed certificate of the Secretary of the Seller setting forth (i) resolutions of its directors in form and substance satisfactory to the Purchasers with respect to the authorization of this Agreement and the Time of Purchase with other Basic Documents to which it is a party and the same effect as though such representations transactions contemplated hereby and warranties had been made on thereby; (ii) the names and as true signatures of the Time officers authorized to sign such instruments; and (iii) copies of Purchasethe articles or certificate of incorporation and the bylaws of the Seller.
(F) The duly executed certificate of the Secretary of each Guarantor which is a corporation setting forth (i) resolutions of its directors in form and substance satisfactory to the Purchasers with respect to the authorization of the Guaranty Agreements executed by such Guarantors and the transactions contemplated hereby and thereby; (ii) the names and true signatures of the officers authorized to sign such instruments; and (iii) copies of the articles or certificate of incorporation and the bylaws of each Guarantor.
(G) The duly executed certificate of all the partners of each Guarantor that is a Partnership and each member of each Guarantor that is a limited liability company, setting forth (i) the Company shall have performed authorization of the Guaranty Agreements and complied with the transactions contemplated hereby and thereby; (ii) the names and title of all agreements persons authorized to sign such instruments; and conditions set forth in (iii) copies of the applicable partnership agreement or contemplated other regulating documents of each such Guarantor.
(H) Evidence that the insurance required hereunder or in and under the other Basic Documents required to be performed or complied with by it at or prior to the Effective Date and/or the Time of Purchase, has been obtained and the Basic Documents shall have been executed and delivered by all the respective parties thereto and shall be is in full force and effect.
(e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this Agreement, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Enron Capital & Trade Resources Corp)
Conditions Precedent to Obligations of the Purchasers. The obligation of each Purchaser to acquire purchase the Securities to be purchased by it hereunder is subject, subject to the satisfaction of the following conditions at the Time of Purchase, to the prior or simultaneous satisfaction or waiver of the following conditions:
(a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The representations and warranties made by the Company herein shall be true and correct in all material respects (except for changes expressly provided for by or contemplated in this Agreement) on and as of the Effective Date and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, the .
(b) The Company shall have performed and complied in all material respects with all covenants, agreements and conditions set forth in or contemplated hereunder or in the Basic Documents herein which are required to be performed or complied with by it them at or prior to the Effective Date and/or Time of Purchase.
(c) Except as disclosed in the Disclosure Documents or the unaudited financial statements referred to in Section 3.1(b), there shall not have occurred any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, assets, properties, prospects or results of operations of the Company, subsequent to the date of the last of such unaudited financial statements.
(d) The purchase of the Securities agreed to be purchased by such Purchaser hereunder shall not at the Time of Purchase, and Purchase be prohibited or enjoined (temporarily or permanently) under the laws of any jurisdiction to which such Purchaser is subject.
(e) The Basic Documents shall have been duly executed and delivered by all the respective parties thereto and shall be in full force and effect.
(e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaserthereto.
(f) The Purchaser shall have received duly executed and delivered copies of this AgreementAs to each Purchaser, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement (i) shall not be prohibited by an applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Basic Documents Board of Governors of the Federal Reserve System), (ii) shall not subject the Purchaser to any penalty or, in its reasonable judgment, other onerous condition under or pursuant to any applicable law or governmental regulations, and (iii) shall be reasonably satisfactory permitted by the laws and regulations of the jurisdiction to the Purchaser and its counselwhich it is subject.
(g) The Purchaser Purchasers shall have received an opinion evidence satisfactory to them that the Certificates of counsel to Designation have been filed with the Company acceptable to the Purchaser addressing the existence and good standing Secretary of State of the Company, the authorization State of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may requestDelaware.
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to III Funds have duly executed and delivered the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the PurchaserAmendment.
(i) The Purchaser Company shall have completed its due diligence review paid the reasonable fees and expenses of such matters as it shall deem appropriateFulbright & Jaworski, and a review of the Company's properties and operations with respect to compliance with Environmental LawsX.X.P., and any available reports related thereto, and the results of such due diligence review shall be satisfactory counsel to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aegis Consumer Funding Group Inc)
Conditions Precedent to Obligations of the Purchasers. The obligation obligations of Purchaser to acquire the Securities is subject, at the Time of Purchase, Purchasers are subject to the prior or simultaneous satisfaction or waiver of the following conditionsconditions precedent:
(a) The Time representations and warranties of Purchase each Seller contained herein shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if true and correct as of the Purchaser agrees to extend the Time of Purchase upon request to do so by the CompanySettlement Date.
(b) The Company Seller shall have complied with all of its covenants and agreements contained herein to be performed by it on or prior to the Settlement Date, and shall have delivered to each of the Purchasers and the Issuer an Assignment Form in the form attached to the Warrants, duly amended its Certificate executed by an authorized representative of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereundersuch Seller.
(c) The Company Seller shall have duly amended received from the Issuer or its Certificate of Incorporation and/or Bylawscounsel a letter (the Issuer’s Letter”), in a form and substance satisfactory acceptable to counsel for Purchasers, stating that the Issuer (i) has no objection to the Purchaserproposed transfer of the Warrants to the Purchasers, including, without limitation, allowing for a maximum and (ii) the Issuer will promptly record the transfer of seven Persons the Warrants to Purchasers on the Company's Board of Directorsits books.
(d) The representations and warranties made Issuer’s Letter shall also state (i) that upon transfer of the Warrants on the books of Issuer by the Company herein Issuer, the Purchasers shall be true and correct (except for changes expressly provided for by this Agreement) on treated as Holders under and as of defined in the Effective Date Registration Rights Agreement by and between XMark Fund, Ltd. (and other Investors) and the Time of Purchase with Issuer dated March 22, 2004 ("RRA") and (ii) have the same effect registration rights and other rights with respect to the Registrable Securities (as though such representations and warranties had been made on and as of the Time of Purchase, the Company shall have performed and complied with all agreements and conditions set forth in or contemplated hereunder or defined in the Basic Documents required to be performed or complied with RRA) which Xmark Fund, Ltd had when it initially purchased the Registrable Securities covered by it at or prior to the Effective Date and/or the Time of Purchase, and the Basic Documents shall have been executed and delivered by all the respective parties thereto and RRA". The Issuer’s Letter shall be in full force and effect.
(e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent reasonably acceptable to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this Agreement, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its Purchasers’ counsel.
(g) The Purchaser shall have received an opinion of counsel to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaser.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Biotechnology Value Fund L P)
Conditions Precedent to Obligations of the Purchasers. The obligation obligations of Purchaser the Purchasers to acquire purchase the Securities is subject, Shares at the Time of Purchase, Closing are subject to the satisfaction at or prior or simultaneous satisfaction or waiver to the Closing of each of the following conditions:conditions (unless satisfaction of any such condition is expressly waived in writing by SFP):
(a) The Time each of Purchase the representations and warranties of the Seller contained in Article II shall not be later than 5:00 P.M.true and correct as of the Closing, Houston, Texas time, on May 15, 1999, subject and SFP shall have received a certificate of the Seller to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.such effect;
(bi) The Company the Seller shall have duly amended its Certificate caused Plastimo Nordic AB to transfer to an entity other than any Company or Subsidiary all of Incorporation to provide the shares held by Plastimo Nordic AB in Scubapro AB for a number price of authorized shares of preferred stock sufficient to issue SEK 1,300,000, (ii) the Preferred Shares hereunder.
(c) The Company Seller shall have duly amended its Certificate assumed or guaranteed any liabilities of Incorporation and/or Bylaws, Plastimo Nordic AB in form and substance satisfactory to the Purchaser, respect of Scubapro AB (including, without limitation, allowing for any taxes payable in respect of the transfer of the shares of Scubapro AB, all inter-company loans and any guaranties of the debts of Scubapro AB) or, to the extent it is impossible to substitute a maximum third party as guarantor of seven Persons on the Companyobligations of Scubapro, Seller shall issue a counter-guarantee to Plastimo Nordic AB, such counter-guarantee to be in a form reasonably acceptable to SFP's Board counsel, and (iii) SFP shall have received a certificate of Directorsthe Seller as to the matters set forth in clauses (i) and (ii);
(c) the Seller shall have delivered to SFP an irrevocable letter of credit of a first class French bank substantially in the form attached in Exhibit 5.02(b) hereto.
(d) The representations and warranties made by the Company herein shall be true and correct (except for changes expressly provided for by this Agreement) on and as board of the Effective Date and the Time directors of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, the Company Plastimo France shall have performed approved (agree) (i) SFP as a new shareholder of Plastimo France and complied with all agreements and conditions set forth (ii) the financial institutions listed in or contemplated hereunder or Exhibit 4.01(d) hereto as new shareholders of Plastimo France in the Basic Documents required event that they exercise their pledges over the shares of Plastimo France pledged to be performed or complied with by it at or prior to the Effective Date and/or the Time of Purchasethem, and the Basic Documents Seller shall have been executed and delivered by all to SFP a certified copy of the respective parties thereto and shall be in full force and effect.relevant board resolutions;
(e) The Company's stockholders the board of directors of Plastimo UK shall have duly executed a valid written consent approving approved the form and content transfer of the Basic Documents Plastimo UK Shares to Plastimo France in accordance with Article 15 of the Articles of Association of Plastimo UK and the performance thereof by the Company and Seller shall have delivered to SFP a certified copy of such consent to the Purchaser.relevant board resolution;
(f) The Purchaser the persons listed in Exhibit 4.01(f) hereto shall have received duly executed and delivered copies tendered their resignations from their respective offices as members of this Agreement, the Loan Agreements boards of directors of the Companies and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance Subsidiaries effective as of the Securities and date of the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counsel.Closing;
(g) The Purchaser the Seller shall have received an opinion of counsel delivered to the Company acceptable to the Purchaser addressing the existence and good standing of the Company, the authorization of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may request.
(h) The Purchaser shall have received a certificate, dated the Time of Purchase, of the Secretary Plastimo France or an Assistant Secretary of the Company, (i) certifying as true, complete and correct the charter and by-laws of the Company and resolutions of the Board of Directors attached thereto, (ii) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Company, (iii) as to the incumbency of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments theretoPlastimo UK, as the Purchaser case may requestbe, duly executed distribution, supply and such certificate and commercial agency agreements substantially in the attachments thereto shall be satisfactory in form and substance to the Purchaser.
(i) The Purchaser shall have completed its due diligence review of such matters as it shall deem appropriate, and a review of the Company's properties and operations with respect to compliance with Environmental Laws, and any available reports related thereto, and the results of such due diligence review shall be satisfactory to the Purchaseragreements contained in Exhibit 4.01(g) hereto.
(j) The Company shall have paid to or on behalf of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-Equity.
(k) The Purchaser shall have received or be satisfied with the completion of all other items described on the current listing of closing documents distributed by the Purchaser to the Company in connection with the execution of this Agreement.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereunder shall have expired or been terminated.
Appears in 1 contract
Samples: Share Purchase Agreement (Johnson Worldwide Associates Inc)
Conditions Precedent to Obligations of the Purchasers. The obligation of each Purchaser to acquire purchase the Securities to be purchased by it hereunder is subject, subject to the satisfaction of the following conditions at the Time of Purchase, to the prior or simultaneous satisfaction or waiver of the following conditions:
(a) The Time of Purchase shall not be later than 5:00 P.M., Houston, Texas time, on May 15, 1999, subject to extension if the Purchaser agrees to extend the Time of Purchase upon request to do so by the Company.
(b) The Company shall have duly amended its Certificate of Incorporation to provide for a number of authorized shares of preferred stock sufficient to issue the Preferred Shares hereunder.
(c) The Company shall have duly amended its Certificate of Incorporation and/or Bylaws, in form and substance satisfactory to the Purchaser, including, without limitation, allowing for a maximum of seven Persons on the Company's Board of Directors.
(d) The representations and warranties made by the Company herein shall be true and correct in all material respects (except for changes expressly provided for by or contemplated in this Agreement) on and as of the Effective Date and the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, .
(b) The Company and the Company Parent shall have performed and complied in all material respects with all covenants, agreements and conditions set forth in or contemplated hereunder or in the Basic Documents herein which are required to be performed or complied with by it them at or prior to the Effective Date and/or Time of Purchase.
(c) Except as disclosed in the Disclosure Documents or the unaudited interim financial statements referred to in Section 3.1(b), there shall not have occurred any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, assets, properties, prospects or results of operations of the Company and the Parent, taken as a whole, subsequent to the date of the last of such unaudited financial statements.
(d) At the Time of PurchasePurchase and after giving effect to the consummation of the transactions contemplated by this Agreement, and there shall exist no Default or Event of Default.
(e) The purchase of the Securities agreed to be purchased by such Purchaser hereunder shall not at the Time of Purchase be prohibited or enjoined (temporarily or permanently) under the laws of any jurisdiction to which such Purchaser is subject.
(f) The Basic Documents shall have been duly executed and delivered by all the respective parties thereto and shall be in full force and effect.
(e) The Company's stockholders shall have duly executed a valid written consent approving the form and content of the Basic Documents and the performance thereof by the Company and shall have delivered a copy of such consent to the Purchaser.
(f) The Purchaser shall have received duly executed and delivered copies of this Agreement, the Loan Agreements and the Structuring Fee Agreement-Equity, intended for delivery on the Effective Date including the Equity Documents together with all other documents reasonably requested by the Purchaser in connection therewith and all proceedings taken in connection with the issuance of the Securities and the transactions contemplated by the Basic Documents shall be reasonably satisfactory to the Purchaser and its counselthereto.
(g) The At the Time of Purchase, such Purchaser shall have received an opinion a certificate dated the Time of counsel to Purchase signed by the Company acceptable to Chairman or the Purchaser addressing President or the existence and good standing Executive Vice President of the CompanyParent stating that the conditions specified in Sections 4.1(a), (b), (c) and (d) have been satisfied at the authorization Time of the Basic Documents, the enforceability of the Basic Documents, the absence of conflicts with law, other material agreements, and court orders, the absence of litigation, and such other matters as the Purchaser may requestPurchase.
(h) The Purchaser shall have received a certificateAs to each Purchaser, dated the Time of Purchase, of the Secretary or an Assistant Secretary of the Company, transactions contemplated by this Agreement (i) certifying as trueshall not be prohibited by an applicable law or governmental regulation (including, complete and correct the charter and by-laws of the Company and resolutions without limitation, Regulation G, T, U or X of the Board of Directors attached theretoGovernors of the Federal Reserve System), (ii) as shall not subject the Purchaser to the absence of proceedings any penalty or, in its reasonable judgment, other onerous condition under or other action for dissolutionpursuant to any applicable law or governmental regulations, liquidation or reorganization of the Company, and (iii) as to shall be permitted by the incumbency laws and regulations of the officers of the Company who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Basic Documents, and (iv) covering such other matters, and with such other attachments thereto, as the Purchaser may request, and such certificate and the attachments thereto shall be satisfactory in form and substance jurisdiction to the Purchaserwhich it is subject.
(i) The Purchaser Trustee shall have completed its due diligence review received an executed copy of such matters as it shall deem appropriate, and a review ^ each of the Company's properties Collateral Documents together with delivery of ^ any collateral required to be delivered pursuant to and operations in accordance with respect to compliance with Environmental Laws, and any available reports related thereto, and the results terms of such due diligence review shall be satisfactory to ^ the PurchaserCollateral Documents.
(j) The Company Trustee shall have paid to or on behalf received an executed copy of the Purchaser all amounts payable pursuant to Section 8.02 of this Agreement and shall have made to ECT Securities Limited Partnership all payments required under the terms of the Structuring Fee Agreement-EquityGuaranty.
(k) The Purchaser Trustee shall have received or be satisfied evidence satisfactory to it that the Certificate of Designation has been filed with the completion Secretary of all other items described on State of the current listing State of closing documents distributed by the Purchaser to the Company in connection with the execution of this AgreementDelaware.
(l) The waiting period under the HSR Act and the rules and regulations promulgated thereunder applicable Each Purchaser shall have received from Herzfeld & Xxxin an opxxxxx addressed to the transactions contemplated hereunder Purchaser, dated the Closing Date, the substantive context of which shall have expired or been terminated.be in substantially the form of Exhibit A. Section 4.2
Appears in 1 contract
Samples: Note Purchase Agreement (Aegis Consumer Funding Group Inc)
