Common use of CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION Clause in Contracts

CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION. The obligation of the Seller to consummate the transactions contemplated hereby is subject to the satisfaction as of the Closing, or the waiver by the Seller, of the following conditions: (a) The warranties and representations of the Buyer made in Article VI of this Agreement shall be true and correct in all material respects on and as of the date of this Agreement; and the Buyer shall have performed in all material respects the covenants of the Buyer contained in this Agreement required to be performed on or prior to the Closing. (b) There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by any Governmental Body directing that the transactions provided for herein, or any of them, not be consummated as herein provided. (c) The Buyer shall have delivered, or caused to have been delivered, to the Seller the following: (i) The Cash Payment as specified in Section 2.3 above; (ii) A certificate from the Secretary of the Buyer, in a form reasonably satisfactory to the Seller, setting forth the resolutions of the Board of Directors of the Buyer authorizing the execution of this Agreement and all Ancillary Agreements to be executed, delivered and performed by the Buyer in connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby; (iii) A recent good standing certificate (or comparable document) for the Buyer issued by the Secretary of State (or comparable office) of the jurisdiction in which the Buyer is domiciled; (iv) The Escrow Agreement, duly executed by each of the Buyer and the Escrow Agent; (v) The Guaranty, duly executed by the Buyer; (vi) Such other endorsements, assignments, affidavits and other good and sufficient instruments of assignment, conveyance and transfer as are reasonably requested by the Seller to reflect that the Permitted Indebtedness will remain an obligation of the Company after the Closing; and (vii) A certificate dated the Closing Date and executed by a duly authorized officer of the Buyer, in a form reasonably satisfactory to the Seller, certifying that all conditions set forth in Section 3.2(a) above, have been fully satisfied. (d) The Buyer shall have delivered to the Escrow Agent the Escrow Amount as specified in Section 2.4 above. (e) The Holding Company shall have delivered to the Seller the Closing Cash Distribution Amount as specified in Section 2.5(a) above.

CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION. The obligation TO CLOSE ------------ -------------------------------------------------------- Notwithstanding any other provision herein, the obligations of the Seller to consummate Sellers under this Agreement are, at the transactions contemplated hereby is option of each Seller, subject to the satisfaction as fulfillment of each of the Closing, or the waiver by the Seller, of the following conditions:conditions set forth below. (a) The warranties Bankruptcy Court shall have approved the Plan, and the approval shall not be the subject of any appeal. (b) The representations of the Buyer Purchaser contained in this Agreement, or otherwise made in Article VI of this Agreement writing in connection with the transactions contemplated hereby, shall be true and correct in all material respects on and as of the date of this Agreement; and Closing Date. On or before the Buyer Closing Date, the Purchaser shall have complied with and duly performed any and all covenants, agreements, and conditions in all material respects the covenants of the Buyer contained respects, on its part to be complied with or performed pursuant to or in connection with this Agreement required to be performed on or prior to before the Closing. (b) There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by any Governmental Body directing that the transactions provided for herein, or any of them, not be consummated as herein providedClosing Date. (c) The Buyer Sellers shall have delivered, or caused to have been delivered, to received a certificate dated as of the Seller the following: (i) The Cash Payment as specified in Section 2.3 above; (ii) A certificate from the Closing Date executed by Secretary of the Buyer, in a form reasonably satisfactory to the Seller, Purchaser setting forth a copy of the resolutions of the adopted by Purchaser's Board of Directors of the Buyer authorizing approving the execution and delivery of this Agreement and all Ancillary Agreements to be executed, delivered and performed by the Buyer in connection herewith and the taking consummation of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby; (iii) A recent good standing certificate (or comparable document) for the Buyer issued by the Secretary of State (or comparable office) of the jurisdiction in which the Buyer is domiciled; (iv) The Escrow Agreement, duly executed by each of the Buyer and the Escrow Agent; (v) The Guaranty, duly executed by the Buyer; (vi) Such other endorsements, assignments, affidavits and other good and sufficient instruments of assignment, conveyance and transfer as are reasonably requested by the Seller to reflect that the Permitted Indebtedness will remain an obligation of the Company after the Closing; and (vii) A certificate dated the Closing Date and executed by a duly authorized officer of the Buyer, in a form reasonably satisfactory to the Seller, certifying that all conditions set forth in Section 3.2(a) above, have been fully satisfied. (d) The Buyer Sellers shall have delivered received an opinion of Xxxx Xxxx Xxxxxx, Esq., counsel for the Purchaser, dated as of the Closing Date to the Escrow Agent effect that (i) Purchaser is a corporation that was duly incorporated and is validly existing under the Escrow Amount laws of the state of Utah and has the corporate power to carry on its business as specified it is now being conducted; (ii) any and all consents or orders of any and all courts (other than the Bankruptcy Court) or governmental agencies, administrative bodies or lenders or others known to counsel have been obtained as of the Closing Date, which are required for the consummation of the transactions contemplated by this Agreement; (iii) this Agreement and the IMX Note has been duly executed and delivered by Purchaser, and is the valid and binding obligation of Purchaser, in accordance with its terms, subject only to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto, and the award by courts of money damages rather than specific performance of contractual provisions involving matters other than the payment of money; (iv) counsel has no actual knowledge of a material breach by Purchaser of any representation made by it pursuant to this Agreement; (v) the issuance of the IMX Stock to the Seller will be exempt from the registration provisions of the Securities Act and will not violate the registration provisions of Section 2.4 above5 of the Securities Act; (vi) the IMX Stock has been duly authorized and, when issued, will be duly issued, fully paid, and non-assessable; and (vii) the transactions contemplated hereby will not cause a breach of the certificate of incorporation or by-laws of Purchaser. (e) The Holding Company Sellers shall have delivered received an opinion of Xxxxxx & Zeder, bankruptcy counsel for the Purchaser, dated as of the Closing Date to the Seller effect that the Bankruptcy Court has approved Purchaser's Plan of Reorganization and is the plan is effective and not subject to appeal. (f) No action or proceeding shall have been instituted to restrain or prohibit the acquisition by the Purchaser, or the conveyance by any Seller, of the Property. (g) Purchaser has executed any Documents (as defined below) that require its execution. (h) The certificate of designation respecting the IMX Preferred shall have been filed with the Secretary of State of Utah. (i) Each director and officer of the Purchaser and each Subsidiary shall have resigned his position, and shall have released the Purchaser or Subsidiary from any liability as of the Closing Cash Distribution Amount Date (which release shall not affect such person's entitlement to indemnification pursuant to Section 8.10 below). (j) The Medicis Options shall not have been transferred, amended, or modified in any manner, and no portion exercisable in 2001, 2002, or 2003 shall have been exercised. (k) The Purchaser shall have executed appropriate documentation to become a party, as specified in Section 2.5(a) abovesuccessor to Seller, to the stockholders agreement respecting TDMI.

CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION. The obligation of the Seller to consummate the transactions contemplated hereby is subject to the satisfaction as of the Closing, or the waiver by the Seller, of each of the following conditions, and each such condition shall be a covenant of the Buyer or the Buyer Parent, as the case may be, to the extent that such action is within the Buyer or the Buyer Parent’s control: (a) The warranties and representations of the Buyer made in Article VI of this Agreement shall be true and correct in all material respects on and as of the date of this AgreementClosing Date; and the Buyer shall have performed in all material respects the covenants of the Buyer contained in this Agreement required to be performed on or prior to the Closing. (b) There The Buyer Parent shall have performed in all material respects the covenants of the Buyer Parent contained in this Agreement required to be no effective injunction, writ, preliminary restraining order performed on or any order of any nature issued prior to the Closing. (c) No Proceeding by any Governmental Body directing that or any other Person shall have been instituted or threatened which seeks to enjoin, restrain or prohibit, or which questions the validity or legality of, the transactions provided for herein, contemplated hereby or which otherwise seeks to affect or could affect the transactions contemplated hereby or impose damages or penalties upon any of them, not be consummated as herein providedparty hereto if such transactions are consummated. (cd) The Buyer Parent shall have filed a listing application with NYSE Amex relating to the Subject Shares, the Officer Inducement Options and the Employee Inducement Options, and such listing application shall have been approved by NYSE Amex. (e) The Buyer shall have delivered, or caused to have been delivered, to the Seller the following: (i) The Cash Payment Note as specified in Section 2.3 2.3(a), above; (ii) A certificate from the Secretary of the Buyer, in a form reasonably satisfactory to the Seller, setting forth the resolutions of the Board of Directors of the Buyer authorizing the execution execution, delivery and performance of this Agreement and all Ancillary Agreements to be executed, delivered and performed by the Buyer in connection herewith and the taking by the Buyer of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby; (iii) A recent good standing certificate (or comparable document) for the Buyer issued by the Secretary of State (or comparable office) of the jurisdiction in which the Buyer such entity is domiciled; (iv) The Escrow Assignment and Assumption Agreement, duly executed by each of the Buyer and the Escrow Agent; (v) The Guaranty, duly executed by the Buyer; (vi) Such other endorsements, assignments, affidavits and other good and sufficient instruments of assignment, conveyance and transfer as are reasonably requested by the Seller to reflect that the Permitted Indebtedness will remain an obligation of the Company after the Closing; and (viiv) A certificate dated the Closing Date and executed by a duly authorized officer of the Buyer, in a form reasonably satisfactory to the Seller, certifying that all conditions set forth in Section 3.2(a) 4.2(a), above, have been fully satisfied. (df) The Buyer Parent shall have delivered, or caused to have been delivered, to the Seller the following: (i) The Collateral Pledge Agreement, duly executed by the Buyer Parent; (ii) The Note Guaranty, duly executed by the Buyer Parent; (iii) Certificate(s) representing the Subject Shares as specified in Section 2.4, above; (iv) The Registration Rights Agreement, duly executed by the Buyer Parent; (v) A certificate from the Secretary of the Buyer Parent, in a form reasonably satisfactory to the Seller, setting forth the resolutions of the Board of Directors of the Buyer Parent authorizing the execution of this Agreement and/or all Ancillary Agreements to be executed, delivered and performed by the Buyer and/or the Buyer Parent in connection herewith and the taking by the Buyer and/or the Buyer Parent of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby; (vi) A recent good standing certificate (or comparable document) for the Buyer Parent issued by the Secretary of State (or comparable office) of the jurisdiction in which such entity is domiciled; and (vii) A certificate dated the Closing Date and executed by a duly authorized officer of the Buyer Parent, in a form reasonably satisfactory to the Seller, certifying that all conditions set forth in Section 4.2(b), above, have been fully satisfied. (g) The Buyer Parent shall have delivered, or caused to have been delivered, to Xxxx the following: (i) The Xxxx Employment Agreement, duly executed by the Buyer Parent; (ii) The Lease Guaranty, duly executed by the Buyer Parent; and (iii) The Xxxx Officer Inducement Option Award Agreements, duly executed by the Buyer Parent. (h) The Buyer shall have delivered delivered, or caused to have been delivered, to Xxxxxx the Escrow Agent following: (i) The Xxxxxx Employment Agreement, duly executed by the Escrow Amount as specified in Section 2.4 aboveBuyer; and (ii) The Xxxxxx Officer Inducement Option Award Agreement, duly executed by the Buyer Parent. (ei) The Holding Company Buyer shall have delivered delivered, or caused to have been delivered, to the Seller Landlord the Closing Cash Distribution Amount as specified in Section 2.5(aLease, duly executed by the Buyer. (j) aboveThe Buyer Parent shall have delivered, or caused to have been delivered, to Xxxxxx the Xxxxxx Inducement Option Award Agreement, duly executed by the Buyer Parent.

CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION. The obligation of ----------------------------------------------- the Seller Sellers to consummate the transactions contemplated hereby herein is subject to the satisfaction as of the Closing, or the waiver by the Seller, Closing of the following conditions: (a) The respective representations and warranties and representations of the Buyer Buyers made in Article VI of this Agreement shall be true and correct in all material respects as of the date hereof and on and as of the date Closing, as though made on and as of this Agreementthe Closing Date; and the Buyer Buyers shall have performed in all material respects the covenants of the Buyer Buyers contained in this Agreement required to be performed on or prior to the Closing; and the Buyers shall have delivered to the Sellers certificates from each of them dated the Closing Date and signed by an authorized representative of such Buyer confirming the foregoing. (b) There The Buyers shall be no effective injunctionhave filed proper HSR Forms with the FTC and the DOJ under the HSR Act, writand the waiting period following the filing of the HSR Forms by the Buyers and Centocor shall have expired, preliminary restraining order whether pursuant to early termination or any order by passage of any nature issued by any Governmental Body directing that the transactions provided for herein, or any of them, not be consummated as herein providedtime. (c) No injunction or order of any court or administrative agency of competent jurisdiction shall be in effect as of the Closing which restrains or prohibits the consummation of the transactions contemplated by this Agreement. (d) The Buyer Buyers shall have delivered, or caused to have been delivered, delivered to the Seller respective Sellers and Centocor, as the case may be, the following: (i) The Cash Payment Asset Purchase Price, the Termination Price, the Covenant Price and the Share Purchase Price, as specified in Section 2.3 Paragraph 2.3, above;. (ii) A certificate Certificates from the Secretary duly authorized representatives of each of the Buyer, in a form reasonably satisfactory to the Seller, Buyers setting forth the resolutions of the Board of Directors of the such Buyer authorizing the execution of this Agreement and all Ancillary Agreements agreements, documents and instruments to be executed, delivered and performed executed by the such Buyer in connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby;herein. (iii) A recent good standing certificate (or comparable document) for the Buyer issued by the Secretary of State (or comparable office) The certificates of the jurisdiction in which the Buyer is domiciled;Buyers required to be delivered pursuant to Paragraph 3.2(a), above. (iv) The Escrow AgreementAn opinion from Fujirebio's counsel, duly executed by each Nishimura & Partners, dated as of the Buyer and Closing Date, in the Escrow Agent;form attached hereto as EXHIBIT ------- 3.2(d)(iv). ---------- (v) The GuarantyA general release dated as of the Closing Date and duly executed by CDP Inc., releasing all claims CDP Inc. may have against Centocor arising from events occurring prior to the Closing, except (a) claims arising under this Agreement or the documents executed in connection herewith, and (b) those claims, if any, listed on attached SCHEDULE 3.2(d)(v). ------------------ (vi) [INTENTIONALLY DELETED] --------------------- (vii) An assignment and assumption agreement dated as of the Closing Date and duly executed by the Buyer;Buyers, assuming the Liabilities, in the form attached hereto as EXHIBIT 3.2(d)(vii). ------------------- (viviii) Such other endorsementsAn opinion from America's special counsel, assignmentsDechert Price & Xxxxxx, affidavits and other good and sufficient instruments of assignment, conveyance and transfer dated as are reasonably requested by the Seller to reflect that the Permitted Indebtedness will remain an obligation of the Company after the Closing; and (vii) A certificate dated the Closing Date and executed by a duly authorized officer of the BuyerDate, in a the form reasonably satisfactory to the Seller, certifying that all conditions set forth in Section 3.2(a) above, have been fully satisfied. (d) The Buyer shall have delivered to the Escrow Agent the Escrow Amount attached hereto as specified in Section 2.4 above.EXHIBIT 3.2(d)(viii). -------------------- (e) The Holding Company Fujirebio and Centocor shall have delivered entered into the Centocor License Agreement, in the form attached hereto as EXHIBIT 1-B. ----------- (f) Centocor and Wistar shall have entered into the Amendment to the Centocor-Wistar Agreement, in the form attached hereto as EXHIBIT 3.2(f). -------------- (g) Fujirebio and Wistar shall have entered into the Fujirebio-Wistar Agreement, in the form attached hereto as EXHIBIT 1-C. ----------- (h) The Stock Seller and America shall have entered into the Escrow Agreement, in the form attached hereto as EXHIBIT 2.3, subject to the ----------- comments of the Escrow Agent as mutually agreed to by America and the Stock Seller. In the event that any of the foregoing conditions to Closing Cash Distribution Amount as specified in Section 2.5(ashall not have been satisfied, the Sellers, acting jointly, may elect to (i) aboveterminate this Agreement without liability to the Sellers provided that any such termination shall be without prejudice to any claims by the Sellers for intentional breach of this Agreement by the Buyers, or (ii) waive all such unsatisfied conditions and consummate the transactions contemplated herein despite such failure. If either of the Sellers or Centocor has actual knowledge or constructive knowledge (meaning that any senior management employee, attorney or other advisor of either Seller or Centocor has knowledge) of the failure of any of the foregoing conditions and, nonetheless, the Sellers elect to consummate the transactions described herein, such conditions shall be deemed waived and the Sellers shall not have any right to be indemnified under Article X, below, for any Damages arising out of the failure to satisfy the condition(s) which have been deemed to have been waived.

CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION. The obligation of ----------------------------------------------- the Seller Sellers to consummate the transactions contemplated hereby herein is subject to the satisfaction as of the Closing, or the waiver by the Seller, Closing of the following conditions: (a) The representations and warranties and representations of the Buyer made in Article VI of this Agreement shall be true and correct in all material respects as of the date hereof and on and as of the date Closing, as though made on and as of this Agreementthe Closing Date; and the Buyer shall have performed in all material respects the covenants of the Buyer contained in this Agreement required to be performed on or prior to the Closing. (b) There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by any Governmental Body directing that ; and the transactions provided for herein, or any of them, not be consummated as herein provided. (c) The Buyer shall have delivered, or caused to have been delivered, delivered to the Seller the following: (i) The Cash Payment as specified in Section 2.3 above; (ii) A certificate from the Secretary of the Buyer, in Sellers a form reasonably satisfactory to the Seller, setting forth the resolutions of the Board of Directors of the Buyer authorizing the execution of this Agreement and all Ancillary Agreements to be executed, delivered and performed by the Buyer in connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated hereby; (iii) A recent good standing certificate (or comparable document) for the Buyer issued by the Secretary of State (or comparable office) of the jurisdiction in which the Buyer is domiciled; (iv) The Escrow Agreement, duly executed by each of the Buyer and the Escrow Agent; (v) The Guaranty, duly executed by the Buyer; (vi) Such other endorsements, assignments, affidavits and other good and sufficient instruments of assignment, conveyance and transfer as are reasonably requested by the Seller to reflect that the Permitted Indebtedness will remain an obligation of the Company after the Closing; and (vii) A certificate dated the Closing Date and executed signed by a duly an authorized officer of the BuyerBuyer confirming the foregoing. (b) The Buyer shall file or cause its ultimate parent entity to file, if required by law, proper premerger notification forms with the FTC and the DOJ under the HSR Act, and the waiting period following the filing of proper premerger notification forms by the Buyer and the Sellers shall have expired, whether pursuant to early termination or by passage of time. (c) All material government consents and licenses, permits, authorizations, approvals or filings with and notification to any federal, state, local or other governmental or regulatory body required to be made or obtained by the Buyer in a form reasonably satisfactory to connection with the Seller, certifying that all conditions set forth in Section 3.2(a) above, consummation of the transactions contemplated by this Agreement shall have been fully satisfiedmade or obtained including, without limitation, filings under the HSR Act. All material consents of third parties required to be obtained by the Buyer in connection with the consummation of such transactions shall have been obtained. (d) No statute, law, regulation or order shall have been enacted by any governmental authority which would make any of the transactions contemplated by this Agreement illegal or otherwise prevent the consummation thereof. (e) No injunction or order of any court or administrative agency of competent jurisdiction shall be in effect as of the Closing which restrains or prohibits the consummation of the transactions contemplated under this Agreement, nor shall have any party, other than the Sellers, commenced any action, suit or proceeding requesting such an injunction or order. (f) The Real Estate Transfer shall have been consummated immediately prior to or simultaneously with the Closing, as contemplated by Paragraph 2.1(f), above. (g) Prior to the Closing, the Company shall have distributed to the Sellers or an entity they will organize, on terms and conditions acceptable to the Sellers and the Buyer, all assets and liabilities associated with the Company's distribution business other than the right to distribute the Company's products in Southern California (all of such transferred assets and liabilities are referred to herein as the "Distribution Business" and the transfer of the Distribution Business is referred to herein as the "Spinoff"). (h) Prior to the Closing, all loans or advances made by the Sellers or any related person or entity to the Company shall have been repaid in full. (i) The Buyer shall have lent or otherwise provided to the Company cash in the amount required to (A) pay the Real Estate Price or, if the Buyer elects to cause the Company to assume the mortgages on the Related Real Estate, the Real Estate Price less the amount of the mortgages assumed by the Company, and the SAR Payment Amount to be paid at the Closing in accordance with Paragraph 2.1(f), above, and Paragraph 1.7, above and (B) allow the Company to pay bonuses aggregating approximately $1,173,575 to employees of the Company in connection with the Closing (the "Employee Bonuses"). (j) The Buyer shall have delivered to the Escrow Agent Sellers the Escrow Amount as specified in Section 2.4 above. documents, certificates, agreements and instruments required under Paragraph 3.2, below. In the event that any of the foregoing conditions to Closing shall not have been satisfied prior to January 31, 1998, Sellers may elect to (ei) The Holding Company shall have delivered terminate this Agreement without liability to the Seller Sellers, or (ii) waive, in writing, any such unsatisfied conditions and consummate the Closing Cash Distribution Amount as specified in Section 2.5(atransactions contemplated herein despite such failure. If the Sellers elect to consummate the transac- tion contemplated herein, the Sellers shall not have any right to be indemnified under Article VIII hereof for any Damages arising out of the failure to satisfy the condition(s) above.which have been waived. ARTICLE III -----------