Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parent; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement: (a) The representations and warranties of the Seller and the Parent contained in this Agreement shall have been true and correct when made and shall be true and correct as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date. (b) The covenants and agreements of the Seller and the Parent contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects. (c) The Buyer shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation of the transactions contemplated hereby and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c). (d) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business. (e) The Buyer shall have received a Xxxx of Sale substantially in the form annexed hereto as Exhibit 8.1(e), duly executed by the Seller. (f) The Seller and the Parent shall have executed and delivered to the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f). (g) The Seller shall have signed and delivered to the Buyer a letter addressed to the customers of the Seller in form and substance satisfactory to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assets. (h) The Seller shall have executed and delivered to the Buyer an Assignment of Patents, Trademarks and Tradenames substantially in the form annexed hereto as Exhibit 8.1
Appears in 1 contract
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition condition, and to close the transactions contemplated hereby without, without however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or herein, by reason of any misrepresentation made by the Seller or the ParentSeller; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreementagreement contained herein:
(a) The representations and warranties of the Seller and the Parent contained in this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller and the Parent contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) The Buyer shall have received, each in form received a certificate dated as of the Closing Date and substance reasonably satisfactory executed by an appropriate officer of the Seller certifying to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation satisfaction of the transactions contemplated hereby conditions referred to in Sections 7.1(a) and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c(b).
(d) Each of the Consents set forth on Schedule 7.1(d) (the "Material Consents) shall have been obtained and shall be in full force and effect.
(e) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Acquired Business.
(ef) The Buyer shall have received a Xxxx certificate of Sale the Secretary or an Assistant Secretary of the Seller (the "Seller Secretary's Certificate") certifying the resolutions duly and validly adopted by the Board of Directors of the Seller, their authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents.
(g) The form and substance of all certificates, transfer documents, opinions, consents, instruments, and other documents delivered to the Buyer under this Agreement shall be satisfactory in all reasonable respects to the Buyer and its counsel.
(h) The Buyer shall have received from Sonnenschein, Nath & Xxxxxxxxx, counsel for the Seller, an opinion dated the Closing Date, in the form of Schedule 7.1(h) attached hereto.
(i) The Buyer shall have received from the Seller at the Closing a certificate of non-foreign status, in the form required by Section 1445 of the Code and the regulations thereunder, signed by an appropriate officer of the Seller under penalties of perjury.
(j) The Buyer shall have received evidence reasonably satisfactory to it (including, without limitation, a release by Xxxxx Fargo Foothill, Inc. acting as agent for Silverpoint, of its Security Interest in the Acquired Assets) that there is no Security Interest upon any of the Acquired Assets and that, with respect to the Acquired Assets, Xxxxx Fargo has waived its rights under the Security Agreement dated May 9, 2003 (which was assigned to Xxxxx Fargo by Wachovia Bank, National Association).
(k) The Buyer shall have received from the Seller the following documents with respect to the Leased Real Property:
(i) an "Assignment and Assumption of Lease, Consent to Assignment and Assumption of Lease and Landlord's Estoppel Certificate" as reasonably agreed by the Parties (the "Lease Assignment") with respect to each Lease executed by the Seller and each landlord under the applicable Lease, and where the Lease is a sublease, the Lease Assignment shall be executed by each prime landlord as well.
(ii) (A) maintenance records for the Leased Real Property to the extent available (B) a validly issued permanent certificate of occupancy for the Leased Real Property, if available, (C) all licenses and permits, authorizations and approvals pertaining to the Leased Real Property to the extent available, and (D) all guaranties and warranties which the Seller has received in connection with any work or services performed or equipment installed in the Leased Real Property.
(iii) The Parties shall complete and execute all necessary tax forms and the Seller shall pay its portion (as determined in accordance with the terms of this Agreement) of any applicable federal, state, county, municipal or other Taxes to the appropriate Tax authorities incurred in connection with the execution and delivery of the Lease Assignment and/or the transfer of the Lease from the Seller to the Buyer.
(l) The Buyer shall have received evidence reasonably satisfactory to it that the Joined Rights Agreements listed on Schedule 6.26(b) have been bifurcated or novated such that they may be assigned solely to the Buyer (or an Affiliate of the Buyer) and so that, at the Closing, the Buyer shall solely assume such Joined Rights Agreements listed on Schedule 6.26(b).
(m) The Buyer shall have received an "Assignment and Assumption of Lease" (the "Mira Loma Lease Assignment") with respect to the Mira Loma Warehouse Lease executed by the landlord under the Mira Loma Warehouse Lease, the Seller (as assignor) and AtomicBox, Inc. (as assignee).
(n) The Buyer shall have received an Assignment of Trademarks substantially in the form annexed hereto as Exhibit 8.1(eof Schedule 7.1(o) (the "Assignment of Trademarks"), duly executed by the Seller.
(fo) The Seller and the Parent Buyer shall have executed and delivered to the Buyer a non-competition agreement received an Assignment of Copyrights substantially in the form annexed hereto as Exhibit 8.1(fof Schedule 7.1(p) (the "Assignment of Copyrights"), duly executed by the Seller.
(gp) The Seller Buyer shall have signed and delivered to the Buyer a letter addressed to the customers of the Seller in form and substance satisfactory to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assets.
(h) The Seller shall have executed and delivered to the Buyer received an Assignment of Patents, Trademarks and Tradenames Licenses substantially in the form annexed hereto as Exhibit 8.1of Schedule 7.1(q), with respect to the License Agreements (the "Assignment of Licenses"), duly executed by the Seller.
Appears in 1 contract
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parent; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Seller and the Parent Sellers contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct as of the Closing DateDate in all material respects, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller and the Parent Sellers contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) The Buyer shall have received, each in form received a certificate dated the Closing Date and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation executed by an officer of the transactions contemplated hereby Sellers, certifying the satisfaction of the conditions set forth in clauses (a), (b) and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c(f).
(d) The Company shall have a Tangible Net Worth as of the date of the Closing Balance Sheet equal to or greater than $5,000,000.
(e) The Buyer shall have received an opinion of inhouse counsel to the Sellers, substantially in the form attached as Exhibit 7.1(e).
(f) No event or events shall have occurred between the date hereof and the Closing Date whichthat, individually or in the aggregate, haveshall have had, or are shall be reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(e) The Buyer shall have received a Xxxx of Sale substantially in the form annexed hereto as Exhibit 8.1(e), duly executed by the Seller.
(f) The Seller and the Parent shall have executed and delivered to the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f)Material Adverse Effect.
(g) The Seller No Proceeding shall be pending or threatened against, and no order, decree or judgment of any court, agency or other Governmental Entity shall have signed and delivered to the Buyer a letter addressed to the customers been rendered against, any party hereto which: (i) would render it unlawful, as of the Seller Closing Date, to effect the transactions contemplated by this Agreement in form and substance satisfactory accordance with its terms; (ii) questions the validity or legality of any transaction contemplated hereby; (iii) seeks to the Buyer advising such customers enjoin any transaction contemplated hereby; (iv) seeks material damages on account of the sale consummation of any transaction contemplated hereby; or (v) is a petition of bankruptcy by or against the Sellers, the Company or any Subsidiary, an assignment by the Seller to Company, the Buyer Sellers or any Subsidiary for the benefit of the Acquired Assetsits creditors, or other similar Proceeding.
(h) The Seller expiration or termination of all applicable waiting periods under the HSR Act with respect to the transactions contemplated by this Agreement, without the Buyer or the Sellers having been advised by the Federal Trade Commission or Department of Justice that they will or may seek to enjoin the consummation of, or otherwise will or may challenge, any such transactions.
(i) In each case, without any waiver or modification, the representations and warranties of the Management Shareholders contained in Section 5 of that certain Subscription Agreement by and among Hub U.S. Holdings, Inc., a Delaware corporation, the Buyer and the Management Shareholders, a true and correct copy of which has been previously provided to Seller, shall have executed been true and delivered to correct when made and shall be true and correct as of the Buyer an Assignment Closing Date in all material respects, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of Patentsa specific date, Trademarks which shall be true and Tradenames substantially in the form annexed hereto correct as Exhibit 8.1of such date.
Appears in 1 contract
Conditions Precedent to the Buyer's Obligations to Close. The -------------------------------------------------------- obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to -------- ------- waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent any Shareholder from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent any Shareholder of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parentany Shareholder; and provided provided, further, however, that the Buyer's -------- ------- ------- participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a1) The representations and warranties of the Seller and the Parent Shareholders contained in this Agreement shall have been true and correct when made and shall be true and correct in all respects as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b2) The covenants and agreements of the Seller and the Parent Shareholders contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(c3) The Buyer shall have received (i) a certificate dated the Closing Date and executed by an executive officer of the Seller, and (ii) a certificate dated the Closing Date and executed by each of the Shareholders, in each case certifying the satisfaction of the conditions referred to in sections 8.1(a) and (b).
(4) The Buyer shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, and shall have delivered all notices to, any Governmental Entity or other Person that is required for the consummation of the transactions contemplated hereby and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c)5.4 attached hereto and which releases are listed in Schedule 7.13.
(d5) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(e6) The Buyer shall have received a Xxxx certificate of Sale substantially in the form annexed hereto as Exhibit 8.1(e), Seller (the "Seller Secretary's Certificate") certifying the resolutions duly executed and validly adopted by the Board of Directors and the Shareholders of the Seller, its authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents.
(f7) The Seller form and the Parent shall have executed substance of all certificates, transfer documents, title reports, opinions, consents, instruments, and other documents delivered to the Buyer a non-competition agreement substantially under this Agreement shall be satisfactory in all reasonable respects to the Buyer and its counsel.
(8) The Buyer shall have received from counsel for the Seller and the Shareholders an opinion dated the Closing Date in the form annexed hereto as of Exhibit 8.1(f)8.1(h) attached hereto.
(g9) The Seller Buyer shall have signed and delivered to received from the Buyer Seller at the Closing a letter addressed to certificate of non-foreign status, in the customers form required by Section 1445 of the Seller in form Code and substance satisfactory to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assetsregulations thereunder.
(h10) Any waiting period applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated and no notice shall have been received by any party from any Governmental Entity of any pending or threatened investigation concerning the acquisitions.
(11) There shall be no order, decree or injunction of a court of competent jurisdiction or other Governmental Entity that prevents the consummation of the transactions contemplated by this Agreement or Proceeding that threatens to prevent such transactions.
(12) The Seller Buyer shall have executed and delivered to received the Buyer an Assignment of Patents, Trademarks and Tradenames substantially in the form annexed hereto as Exhibit 8.1Spousal Consent.
Appears in 1 contract
Samples: Asset Contribution and Exchange Agreement (Medsource Technologies Inc)
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parent; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Seller and the Parent Sellers contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct as of the Closing DateDate in all material respects, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller and the Parent Sellers contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) The Buyer shall have received, each in form received a certificate dated the Closing Date and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation executed by an officer of the transactions contemplated hereby Sellers, certifying the satisfaction of the conditions set forth in CLAUSES (A), (B) and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c(F).
(d) The Company shall have a Tangible Net Worth as of the date of the Closing Balance Sheet equal to or greater than $5,000,000.
(e) The Buyer shall have received an opinion of inhouse counsel to the Sellers, substantially in the form attached as Exhibit 7.1(e).
(f) No event or events shall have occurred between the date hereof and the Closing Date whichthat, individually or in the aggregate, haveshall have had, or are shall be reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(e) The Buyer shall have received a Xxxx of Sale substantially in the form annexed hereto as Exhibit 8.1(e), duly executed by the Seller.
(f) The Seller and the Parent shall have executed and delivered to the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f)Material Adverse Effect.
(g) The Seller No Proceeding shall be pending or threatened against, and no order, decree or judgment of any court, agency or other Governmental Entity shall have signed and delivered to the Buyer a letter addressed to the customers been rendered against, any party hereto which: (i) would render it unlawful, as of the Seller Closing Date, to effect the transactions contemplated by this Agreement in form and substance satisfactory accordance with its terms; (ii) questions the validity or legality of any transaction contemplated hereby; (iii) seeks to the Buyer advising such customers enjoin any transaction contemplated hereby; (iv) seeks material damages on account of the sale consummation of any transaction contemplated hereby; or (v) is a petition of bankruptcy by or against the Sellers, the Company or any Subsidiary, an assignment by the Seller to Company, the Buyer Sellers or any Subsidiary for the benefit of the Acquired Assetsits creditors, or other similar Proceeding.
(h) The Seller expiration or termination of all applicable waiting periods under the HSR Act with respect to the transactions contemplated by this Agreement, without the Buyer or the Sellers having been advised by the Federal Trade Commission or Department of Justice that they will or may seek to enjoin the consummation of, or otherwise will or may challenge, any such transactions.
(i) In each case, without any waiver or modification, the representations and warranties of the Management Shareholders contained in Section 5 of that certain Subscription Agreement by and among Hub U.S. Holdings, Inc., a Delaware corporation, the Buyer and the Management Shareholders, a true and correct copy of which has been previously provided to Seller, shall have executed been true and delivered to correct when made and shall be true and correct as of the Buyer an Assignment Closing Date in all material respects, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of Patentsa specific date, Trademarks which shall be true and Tradenames substantially in the form annexed hereto correct as Exhibit 8.1of such date.
Appears in 1 contract
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parent; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Seller and the Parent contained in this Agreement shall have been true and correct when made and shall be true and correct as of the Closing DateDate in all material respects, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller and the Parent contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) The Buyer shall have received, each in form received a certificate dated the Closing Date and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation executed by an officer of the transactions contemplated hereby Seller, certifying the satisfaction of the conditions set forth in clauses (a) and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c(b).
(d) No event or events shall have occurred between the date hereof and the Closing Date whichthat, individually or in the aggregate, shall have, or are shall be reasonably likely to have, a material adverse effect on the Acquired Assets or the BusinessMaterial Adverse Effect.
(e) The Buyer No Proceeding shall be pending or threatened against, and no order, decree or judgment of any court, agency or other Governmental Entity shall have received been rendered against, any party hereto which: (i) would render it unlawful, as of the Closing Date, to effect the transactions contemplated by this Agreement in accordance with its terms; (ii) questions the validity or legality of any transaction contemplated hereby; (iii) seeks to enjoin any transaction contemplated hereby; (iv) seeks material damages on account of the consummation of any transaction contemplated hereby; or (v) is a Xxxx petition of Sale substantially in bankruptcy by or against the form annexed hereto as Exhibit 8.1(e)Seller or the Company, duly executed an assignment by the Seller.
(f) The Seller and the Parent shall have executed and delivered to the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f).
(g) The Seller shall have signed and delivered to the Buyer a letter addressed to the customers of Company or the Seller in form and substance satisfactory to for the Buyer advising such customers benefit of the sale by the Seller to the Buyer of the Acquired Assetsits creditors, or other similar Proceeding.
(h) The Seller shall have executed and delivered to the Buyer an Assignment of Patents, Trademarks and Tradenames substantially in the form annexed hereto as Exhibit 8.1
Appears in 1 contract
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition condition, and to close the transactions contemplated hereby without, without however, releasing the either Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the either Seller or the Parent Shareholder of any covenant, obligation, agreement or condition contained herein or herein, by reason of any misrepresentation made by the either Seller or the ParentShareholder; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Seller Sellers and the Parent Shareholder contained in this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller Sellers and the Parent Shareholder contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(c) The Buyer shall have received (i) a certificate dated the Closing Date and executed by an appropriate officer of each Seller, and (ii) a certificate dated the Closing Date and executed by an appropriate officer of the Shareholder, in each case certifying the satisfaction of the conditions referred to in sections 8.1(a) and (b).
(d) The Buyer and the Sellers shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, and shall have delivered all notices to, any Governmental Entity or other Person that which is required for the consummation of the transactions contemplated hereby and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c)5.4(b) attached hereto and which releases are listed in Schedule 7.13.
(de) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(ef) The Buyer shall have received a Xxxx certificate of Sale substantially in each of the form annexed hereto as Exhibit 8.1(e), Sellers (the "Seller Secretary's Certificates") certifying the resolutions duly executed and validly adopted by the Board of Directors of such Seller.
(f) The Seller , their respective authorization of the execution and delivery of this Agreement and the Parent shall have executed other Transaction Documents to which such Seller is a party and delivered the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of such Seller authorized to sign this Agreement and the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f)other Transaction Documents.
(g) The Seller Buyer shall have signed received all such documents and delivered instruments including, without limitation, such deeds of transfer, title reports and property surveys with respect to the Buyer a letter addressed transfer of all legal rights in the real property to the customers of the Seller in form and substance satisfactory be transferred pursuant to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assetsthis Agreement.
(h) The Seller shall have executed form and substance of all certificates, transfer documents, title reports, property surveys, deeds, opinions, consents, instruments, and other documents delivered to the Buyer under this Agreement shall be satisfactory in all reasonable respects to the Buyer and its counsel.
(i) The Buyer shall have received from counsel for the Sellers and the Shareholder, an Assignment of Patents, Trademarks and Tradenames substantially opinion dated the Closing Date in the form annexed hereto as of Exhibit 8.1
(i) attached hereto.
(j) The Buyer shall have received from each Seller at the Closing a certificate of non-foreign status, in the form required by section 1445 of the Code and the regulations thereunder.
(k) The Buyer shall have received a copy of a Phase I Environmental Report relating to the Sellers' Leased Real Property which shall be satisfactory in the sole judgment of the Buyer.
(l) The Buyer shall have obtained the financing required to fund the purchase hereunder and the transactions contemplated by the parties hereto on terms and conditions acceptable to the Buyer.
(m) Any waiting period applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated and no notice shall have been received by any party from any Governmental Entity of any pending or threatened investigation or providing concerning the acquisitions.
(n) There shall be no order, decree or injunction of a court of competent jurisdiction or other Governmental Entity that prevents the consummation of the transactions contemplated by this Agreement or Proceeding that threatens to prevent such transactions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Electric & Gas Technology Inc)
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on as of the Closing Date of each of the following conditions; provided, however, that to the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained extent not waived by the Buyer by reason of the breach by the Seller or the Parent of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parent; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreementparties hereto:
(a) The representations and warranties of the Seller and the Parent Sellers contained in this Agreement shall have been true Article 3 that (i) contain qualifications and correct when made and exceptions therein relating to materiality or a Material Adverse Effect shall be true and correct on and as of the Closing Date, with the same force Date and effect as if made on the Closing Date, except for such representations (ii) do not contain any qualifications and warranties as are made as of exceptions therein relating to materiality or a specific date, which Material Adverse Effect shall be true and correct in all material respects on and as of the Closing Date (except, in the case of either (i) or (ii), to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct or materially true and correct, as appropriate, as of such earlier date).
(b) The covenants and agreements of the Seller Sellers and the Parent contained in this Agreement and required to be complied with or performed on or prior to or as of the Closing Date shall have been complied with or performed in all material respects.
(c) The Buyer shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, any Governmental Entity or other Person that is required for the consummation received a certificate dated as of the transactions contemplated hereby Closing Date and for executed by an officer of each Seller and Parent, certifying the Buyer to conduct satisfaction of the conditions set forth in clauses (a) and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c(b).
(d) No event or events The Sellers and Parent shall have occurred between executed and/or delivered, as applicable:
(i) The Strategic Alliance Agreement;
(ii) Seller Required Consents;
(iii) The Sub-Lease Agreement;
(iv) The Owned RE Lease;
(v) The Transition Services Agreement;
(vi) The resignations of those managers and officers of each of the date hereof Companies who are also full-time employees of Parent or any of its subsidiaries (excluding the Companies);
(vii) An Assignment and Assumption Agreement with respect to the Closing Date which, individually or intellectual property described in Section 5.3(b); and
(viii) A Xxxx of Sale with respect to the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Businessassets described in Section 5.18.
(e) The Buyer shall have received a Xxxx of Sale substantially in the form annexed hereto as Exhibit 8.1(e), duly executed by Estimated Closing Date Balance Sheets at least five (5) days prior to the SellerClosing.
(f) The Seller A certificate duly executed by the Secretary of each of the Sellers, certifying the resolutions duly and validly adopted by the Parent shall have executed board of directors of the Sellers, evidencing the authorization of the Sellers' consummation of the transactions contemplated hereby and, as to its certificate of incorporation and delivered to by-laws, each in effect as of the Buyer a non-competition agreement substantially in the form annexed hereto as Exhibit 8.1(f)Closing Date.
(g) The Seller transactions contemplated hereby and by the other Transaction Documents shall have signed and delivered to the Buyer a letter addressed to the customers of the Seller in form and substance satisfactory to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assetsreceived HSR Clearance.
(h) There shall not be in effect any injunction or Order issued by a court of competent jurisdiction in any Proceeding against the consummation of the transactions contemplated hereby or by any Transaction Document.
(i) The Seller Buyer shall have executed received long-form good standing certificates, where recognized (or the equivalent thereto in the relevant jurisdiction) relating to each Company, dated within five (5) business days of the Closing Date, issued by the Secretary of State (or other similar official) of their respective states of organization or formation, as the case may be.
(j) The Buyer shall have received such instruments of assignment and delivered transfer as are reasonably required to effect the transfer of the Interests to the Buyer an Assignment of Patents, Trademarks and Tradenames substantially in the form annexed hereto as Exhibit 8.1accordance with this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hub International LTD)
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; providedPROVIDED, howeverHOWEVER, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller or the Parent any Shareholder from any covenant, obligation, obligation or agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller or the Parent any Shareholder of any covenant, obligation, obligation or agreement or condition contained herein or by reason of any misrepresentation made by the Seller or the Parentany Shareholder; and provided furtherPROVIDED, howeverFURTHER, HOWEVER, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a1) The representations and warranties of the Seller and the Parent Shareholder contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date; PROVIDED, HOWEVER, that if any representation or warranty is already qualified by materiality, for purposes of determining whether this condition has been satisfied, such representation or warranty as so qualified shall be true and correct in all respects.
(b2) The covenants and agreements of the Seller and the Parent Shareholder contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c3) The Buyer shall have received (i) a certificate dated the Closing Date and executed by an executive officer of the Seller, and (ii) a certificate dated the Closing Date and executed by the Shareholder, in each case certifying the satisfaction of the conditions referred to in sections 8.1(a) and (b).
(4) The Buyer and the Seller shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, and shall have delivered all notices to, any Governmental Entity or other Person that is required for the consummation of the transactions contemplated hereby and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c)section 5.4(b) of the Disclosure Letter and which releases are listed in section 7.13 of the Disclosure Letter.
(d5) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(e6) The Buyer shall have received a Xxxx certificate of Sale substantially in the form annexed hereto as Exhibit 8.1(e), Seller (the "Seller's Secretary's Certificate") certifying the resolutions duly executed and validly adopted by the Board of Directors and the Shareholder of the Seller, its authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents.
(f7) The Seller Buyer shall have received a certificate of the Shareholder (the "Shareholder's Secretary's Certificate") certifying the resolutions duly and validly adopted by the Board of Directors of the Shareholder, its authorization of the execution and delivery of this Agreement and the Parent other Transaction Documents to which the Shareholder is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Shareholder authorized to sign this Agreement and the other Transaction Documents.
(8) The Buyer shall have executed received all such documents and instruments including, without limitation, such deeds of transfer and title reports with respect to the transfer of all legal rights in the real property to be transferred pursuant to this Agreement.
(9) The form and substance of all certificates, transfer documents, title reports, deeds, opinions, consents, instruments and other documents delivered to the Buyer a non-competition agreement substantially under this Agreement shall be satisfactory in all reasonable respects to the Buyer and its counsel.
(10) The Buyer shall have received from counsel for the Seller and the Shareholder an opinion dated the Closing Date in the form annexed hereto as of Exhibit 8.1(f)8.1(j) attached hereto.
(g11) The Seller Buyer shall have signed and delivered to received from the Buyer Seller at the Closing a letter addressed to certificate of non-foreign status, in the customers form required by Section 1445 of the Seller in form Code and substance satisfactory to the Buyer advising such customers of the sale by the Seller to the Buyer of the Acquired Assetsregulations thereunder.
(h12) There shall be no order, decree or injunction of a court of competent jurisdiction or other Governmental Entity that prevents the consummation of the transactions contemplated by this Agreement or Proceeding that threatens to prevent such transactions.
(13) The Seller Buyer shall have executed and delivered received at the Buyer's expense an owner's extended coverage policy of title insurance with respect to the Owned Real Property (or a marked-up and signed title commitment if the policy of insurance is not customarily issued on the Closing Date in one or more of the relevant locales), issued on the date of Closing by a title insurance company acceptable to counsel for Buyer. Such title insurance policy shall be in an amount designated by Buyer and shall insure the Buyer's ownership of fee title to the Owned Real Property and to all buildings, structures and improvements located thereon, free and clear of all Liens. At Buyer's sole option and expense, each such policy shall include an Assignment of Patents, Trademarks and Tradenames substantially ALTA-9 comprehensive endorsement. Such title insurance policy shall otherwise be in the form annexed hereto as Exhibit 8.1reasonably satisfactory to counsel to Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Image Guided Technologies Inc)
Conditions Precedent to the Buyer's Obligations to Close. The obligation of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Buyer shall have the right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Seller Sellers or the Parent either Shareholder from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer by reason of the breach by the Seller Sellers or the Parent either Shareholder of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Seller Sellers or the Parenteither Shareholder; and provided further, however, that the Buyer's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Seller Sellers and the Parent Shareholders contained in this Agreement shall have been true and correct when made and shall be true and correct as of the Closing Date, with the same force and effect as if made on the Closing Date, except for such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements of the Seller Sellers and the Parent Shareholders contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(c) The Buyer shall have received (i) a certificate dated the Closing Date and executed by an executive officer of each of the Sellers, and (ii) a certificate dated the Closing Date and executed by each of the Shareholders, in each case certifying the satisfaction of the conditions referred to in Sections 8.1(a) and (b).
(d) The Buyer shall have received, each in form and substance reasonably satisfactory to the Buyer, all Consents of, and estoppel certificates and releases from, and shall have delivered all notices to, any Governmental Entity or other Person that is required for the consummation of the transactions contemplated hereby and for the Buyer to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(c)5.4(b) attached hereto.
(de) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(ef) The Buyer shall have received a certificate of each of the Sellers (the "Sellers Secretary's Certificate") certifying the resolutions duly and validly adopted by the Board of Directors and the Shareholders of the Sellers, its authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Sellers are a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of each of the Sellers authorized to sign this Agreement and the other Transaction Documents.
(g) [Intentionally Omitted.]
(h) The Buyer shall have received a Xxxx of Sale substantially Sale, in the form annexed hereto as of Exhibit 8.1(e)8.1(h) (the "Xxxx of Sale") attached hereto, duly executed by each of the SellerSellers.
(fi) The Seller and the Parent DS shall have executed and delivered to the Buyer a non-competition an employment agreement substantially in the form annexed hereto as of Exhibit 8.1(f8.1
(i) (A), AS shall have executed and delivered to the Buyer an employment agreement in the form of Exhibit 8.1(i)(B) and XxxxXxxxxx Xxxxxxxx and Xxxxxxxxxxx Xxxxx shall have executed and delivered to the Buyer an employment agreement in the form of Exhibit 8.1(i)(C).
(gj) The Seller Each of the Sellers shall have signed and delivered to the Buyer a letter addressed to the customers of each of the Seller Sellers in the form and substance satisfactory to the Buyer of Exhibit 8.1
(j) hereto advising such customers of the sale by the Seller Sellers to the Buyer of the Acquired AssetsBusiness.
(hk) The Seller Each of the Sellers shall have executed signed and delivered to the Buyer an Assignment assignment of Patentseach of the Leases, Trademarks and Tradenames substantially with the appropriate consent of landlord attached thereto, in the form annexed hereto of Exhibit 8.1(k).
(l) There shall be no order, decree or injunction of a court of competent jurisdiction or other Governmental Entity that prevents the consummation of the transactions contemplated by this Agreement or Proceeding that threatens to prevent such transactions.
(m) The Sellers and Shareholders shall produce evidence satisfactory to Buyer that Section 7.10 has been complied with.
(n) The Sellers shall have filed, or caused to be filed, with the New York Secretary of State and the New York Superintendent of Insurance (as Exhibit 8.1well as with the Secretary of State and Commissioner or Superintendent of Insurance of such jurisdictions in which any of the Sellers are qualified or are operating as a foreign corporation) an amendment to the Certificate of Incorporation or equivalent document of each of the Sellers changing each of the
Appears in 1 contract
