Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions: (a) The representations and warranties of the Sellers and Dourave contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) as and to the extent that such representations or warranties speak as of a specific date or time other than the Closing Date, which need be true and correct in all material respect only as of the specified date or time; (b) The Sellers and Dourave shall have performed all agreements and covenants required hereby to be performed by them prior to or at the Closing Date; provided, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform. (c) There shall be delivered to Buyer a certificate signed by each of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b); (d) No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1 (e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing; (f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries; (g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors; (h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder; (i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D; (j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate; (k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E; (l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and (m) On or prior to the Closing Date, the Sellers and Dourave shall have delivered to Buyer each of the following: (i) Dourave’s minute books, stock transfer records, corporate seal and other materials related to Dourave’s corporate administration; (ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration; (iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and (iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may request.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bullion Monarch Mining, Inc. (NEW))
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, The obligations of the obligation of Buyer to consummate the transactions to be performed by it in connection with the Shares Closing shall be subject to the satisfactionfulfillment or written waiver by the Buyer (in its sole discretion), on or prior to the Shares Closing Date, of each of the following conditions:
(a) The All of the representations and warranties of the Sellers Company and Dourave Calgary contained in this Agreement shall be true and correct in all material respects at when made and on and as of the Shares Closing Date with the same effect as if though such representations and warranties were had been made at on and as of the Shares Closing Date, except (i) as and to the extent that the facts and conditions upon which for such representations and warranties which are based are expressly required or permitted qualified as to materiality, which shall be changed by the terms hereof true and (ii) as correct in all respects, and to the extent that except for such representations or and warranties speak which are made as of a specific date or time other than the Closing Datespecified date, which need shall be true and correct in all material respect only respects or, if qualified by materiality then true and correct in all respects, as of the specified date or time;such date.
(b) The Sellers Company and Dourave Calgary shall have performed and observed in all material respects all covenants and agreements and covenants required hereby to be performed and observed by them the Company and Calgary under this Agreement at or prior to or at the Shares Closing Date; provided, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(c) There No action, proceeding, claim or litigation shall be delivered have been commenced (or, threatened, if in Buyer’s commercially reasonable judgment such threat constitutes a colorable claim) by or before any Governmental Authority against any Party hereto seeking to Buyer a certificate signed by each restrain or materially and adversely alter the purchase and sale of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b);Shares.
(d) No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries;
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and
(m) On or prior to the Closing Date, the Sellers and Dourave Company shall have delivered to Buyer each of the following:applicable items, executed certificates and instruments as set forth in Section 2.06 for the Shares Closing.
(ie) Dourave’s minute booksThe anticipated transactions between the Company and Zhonghuan Ruiheng Environmental Technology Co., stock transfer recordsLtd. (“ZHRH China”) pursuant to which the Company shall obtain a controlling interest in ZHRH China (the “ZHRH Transaction”) shall have been completed and the Company shall have obtained such controlling interest, corporate seal and other materials related to Dourave’s corporate administration;
(ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted as determined by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may requestCompany.
Appears in 1 contract
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions:.
(a) The All representations and warranties of the Sellers and Dourave Seller contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations date of this Agreement and warranties were made at and as of the Closing Date, except (i) as and to the extent that any such representation or warranty expressly relates or is limited to an earlier date and except for changes therein permitted or contemplated by this Agreement, and Seller and the facts Company shall have performed and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) as and to the extent that such representations or warranties speak as of a specific date or time other than the Closing Date, which need be true and correct satisfied in all material respect only as of the specified date or time;
(b) The Sellers and Dourave shall have performed respects all agreements and covenants required hereby to be performed by them prior to or at on the Closing Date; provided, however, that Buyer and Seller shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(c) There shall be have delivered to Buyer a certificate signed by each of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b);
(d) No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries;
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Douraveeffect, dated as of the Closing Date and substantially in the form attached hereto as Exhibit EDate, signed on behalf of Seller by an authorized officer of Seller;
(lb) Buyer (i) Each of the consents, authorizations or approvals identified in Section 7.2(a) of the Disclosure Schedule (the “Required Consents”) shall have determined been obtained and shall be in its reasonable discretion that the issuance full force and effect, (ii) each of the consents, authorizations or approvals identified in Section 7.2(b) of the Disclosure Schedule (the “PC Consents”) shall have been obtained and shall be in full force and effect, except for the failure to obtain such consents with respect to up to any two (2) of such P.C.s, and (iii) each of the consents, authorizations or approvals identified in Section 7.2(c) of the Disclosure Schedule (the “Other Consents” and, together with the Required Consents and the PC Consents, the “Consents”) shall have been obtained and shall be in full force and effect, except for such Other Consents the failure of which to obtain would not have a Material Adverse Effect;
(c) The approval of this Agreement and the sale of the Membership Interests by the shareholders of Seller shall have become effective in accordance with all Legal Requirements;
(d) Since the date of this Agreement, there shall not have been commenced or threatened against Buyer Shares any Proceeding (i) involving any challenge to, or seeking Damages or other relief in connection with, any of the Contemplated Transactions or (ii) that may have the effect of preventing, delaying, making illegal, imposing limitations or conditions on or otherwise materially interfering with any of the Contemplated Transactions;
(e) Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of or cause Buyer to suffer any adverse consequence under (i) any applicable Legal Requirement or Order or (ii) any Legal Requirement or Order that has been published, introduced or otherwise proposed by or before any Governmental Body;
(f) the Sellers contemplated by this Spa License Agreement shall be exempt from registration under the Securities Act, the Exchange Act in full force and the rules and regulations promulgated thereunder; andeffect;
(mg) On or Seller shall have delivered to Buyer a certificate of good standing of the Company dated as of a date no earlier than fifteen (15) days prior to the Closing Date, the Sellers and Dourave ;
(h) Seller shall have delivered to Buyer each of the following:formulas for those products used in the Spa Business that Seller is permitted to manufacture under the Spa License;
(i) Dourave’s minute booksSeller and the Company shall have consummated the Contribution Agreement, stock which agreement shall be in full force and effect, and Seller shall have completed the transfer records, corporate seal and other materials related of assets to Dourave’s corporate administrationthe Company contemplated by the Contribution Agreement;
(iij) copies The dissenting shareholders of the minute booksSeller, stock transfer recordsif any, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectivelyshall have been paid, and that accepted, the fair market value of their shares as agreed with Seller, in accordance with the requirements of Utah law, or Seller shall have established a reserve for such resolutions and organizational documents were duly adopted and have not been amended or rescindedpayments that, in the good faith opinion of Seller, is adequate to cover payments to dissenting shareholders; and
(ivk) incumbency certificates executed on behalf The Spa License Agreement shall be in full force and effect, and not breached in any material respect by either party thereto, as of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may requestClosing Date.
Appears in 1 contract
Samples: Limited Liability Company Membership Interest Purchase Agreement (Britesmile Inc)
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation The obligations of Buyer to consummate effect any or all of the transactions to be performed contemplated by it in connection with the Closing this Agreement shall be subject to the satisfaction, on fulfillment at or prior to the Closing Date, of each the following conditions or a waiver in writing by the Buyer of the following conditions:
(ai) The representations and warranties of the Sellers and Dourave contained Shareholder set forth in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at date of this Agreement and as of the Closing Date;
(ii) Shareholder shall have surrendered to Buyer the Company Shares without any Encumbrances, except by delivery of duly executed and irrevocable VPS transfer instructions(s), in a form reasonably satisfactory to Buyer, assigning all the Company Shares to Buyer and deliver to the Buyer a transcript from the Company’s VPS account manager’s screen evidencing that the Company Shares have been transferred out of the VPS account(s) of the Shareholder and to the VPS account of Buyer free and clear of all Encumbrances;
(iii) Prior to the successful registration of the Initial Shares with the Norwegian Register of Business Enterprises, none of the following shall have occurred: (i) as and to trading in securities generally on the extent that NASDAQ Global Select Market shall have been suspended or materially limited or the facts and conditions upon which settlement of such representations and warranties are based are expressly required trading generally shall have been materially disrupted or permitted to be changed minimum prices shall have been established on any such exchange or such market by the terms hereof United States Securities and Exchange Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) as and to a banking moratorium shall have been declared by federal or New York state authorities, (iii) the extent that such representations United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or warranties speak as there shall have been a declaration of a specific national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or time other than the Closing Dateeffect of international conditions on the financial markets in the United States shall be such), which need be true and correct in all material respect only as to make it impracticable or inadvisable to proceed with Buyer’s purchase of the specified date or timeCompany Shares on the terms and in the manner contemplated by this Agreement;
(biv) The Sellers and Dourave shall have performed all agreements and covenants required hereby Prior to be performed by them prior to or at the Closing Date; providedsuccessful registration of the Initial Shares with the Norwegian Register of Business Enterprises, however, that Buyer there shall not be entitled to refuse to consummate have occurred any downgrading, or any public notice having been given of (A) any intended downgrading or (B) any review or possible change that does not indicate an improvement in the transaction in reliance upon its own breach rating accorded any securities of or failure to perform.
(c) There shall be delivered to Buyer a certificate signed guaranteed by each of the Sellers and Trico by an officer of Dourave certifyingany “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the case may beU.S. Securities Act of 1933, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b)as amended;
(dv) Buyer shall own or have the contractual right to acquire at least 50.1% of the Company’s Fully Diluted Common Stock and the Initial Shares shall have been approved by the Company’s Board of Directors, issued by the Company and successfully registered in the Norwegian Register of Business Enterprises;
(vi) Shareholder shall have executed and delivered the Phantom Stock Units Agreement; and
(vii) No governmental agency or other Person shall have commenced or threatened the commencement of an action or proceeding shall have been instituted before a court or other governmental body or by seeking to prohibit the consummation of any governmental agency or public authority to restrain or prohibit of the transactions contemplated by this Agreement or adversely affecting the right of Buyer to obtain an amount of damages or other material relief in connection with own the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries;
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and
(m) On or prior to the Closing Date, the Sellers and Dourave shall have delivered to Buyer each of the following:
(i) Dourave’s minute books, stock transfer records, corporate seal and other materials related to Dourave’s corporate administration;
(ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may requestCompany Shares.
Appears in 1 contract
Samples: Management Share Purchase Agreement (Trico Marine Services Inc)
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of the Sellers and Dourave Seller contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) as and to the extent that such representations or warranties speak as of a specific date or time other than the Closing Date, which need be true and correct in all material respect only as of the specified date or time;
(b) The Sellers and Dourave Seller shall have performed all agreements and covenants required hereby to be performed by them prior to or at the Closing Date; provided, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.. STG_331661.1
(c) There shall be delivered to Buyer a certificate signed by each of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b);
(d) No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1;
(ed) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(fe) From the date of this Agreement through the Closing, no Material Adverse Effect on the business of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the business of Dourave or of the Subsidiaries;; and
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(lf) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and.
(mg) On or prior to the Closing Date, the Sellers The sale and Dourave shall have delivered to Buyer each purchase of the following:
(i) Dourave’s minute books, stock transfer records, corporate seal Dourave Shares and other materials related to Dourave’s corporate administration;
(ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of transactions contemplated in this Agreement and the consummation agreements contemplated in the agreements to be entered into with the Individual Shareholders and the Key Shareholders and Dourave shall be approved and accepted by all holders of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may requestShares.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bullion Monarch Mining, Inc. (NEW))
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing shall be is subject to satisfaction of the satisfactionfollowing conditions, on any of which Buyer may waive by execution of a writing so stating at or prior to the Closing Date, of each of the following conditionsClosing:
(a) The the representations and warranties of the Sellers and Dourave contained set forth in this Agreement Section 3.1 below shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) as and to the extent that such representations or warranties speak as of a specific date or time other than the Closing Date, which need be true and correct in all material respect only as of the specified date or time;
(b) The Sellers and Dourave the Seller shall have performed and complied with all agreements and of its covenants required hereby to be performed by them prior to or at hereunder in all material respects through the Closing Date; provided, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.Closing;
(c) There the Seller shall be delivered provide evidence satisfactory to the Buyer a certificate signed by each of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b);
(d) No action or proceeding shall that there have been instituted before a court or other governmental body or obtained all consents, approvals and authorizations required for the consummation by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation Seller of the transactions contemplated by this Agreement for transfer of the Restaurant Assets;
(d) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would constitute (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of the Buyer to own the Restaurant Assets, and no such injunction, judgment, order, decree, ruling, or charge shall be in effect;
(e) the Seller and Shareholders shall have delivered to the Buyer a certificate dated as of the Closing Date and executed by the chief executive officer of the Seller and each Shareholder to the effect that each of the conditions specified above in Section 2.3(a)-(d) is satisfied in all material respects;
(f) the Buyer shall have received all material authorizations, consents, and approvals of governments and governmental agencies necessary or appropriate in connection with consummating the transactions contemplated by this Agreement for transfer of the Restaurant Assets;
(g) the Buyer's due diligence investigation of the Seller as contemplated by Section 4.5 hereof shall have been completed to the satisfaction of Buyer no later than November 19, 2003 (the "Due Diligence Period");
(h) the Buyer shall have received the following in form and substance satisfactory to Buyer in Buyer's sole discretion with respect to each Equipment Lease:
(i) a written Assignment ("Assignment") of each Equipment Lease; and
(ii) a written consent of the lessors of said Equipment Lease approving same; provided however, in the event that Seller is not able to secure said consent prior to Closing and Buyer waives said requirement, Seller shall transfer to Buyer all equitable rights in said Equipment Lease.
(i) the Buyer shall have received the following in form and substance satisfactory to Buyer in Buyer's sole discretion with respect to each Lease:
(i) a written Assignment ("Assignment") of all Leases, executed by the Tenant or Lessee thereof with respect to each parcel of Leased Real Property;
(ii) a written consent of the Landlord or Lessor with respect to the Assignment of Tenant's or Lessee's leasehold interest with respect to each such Lease Agreement;
(iii) an Estoppel Agreement ("Estoppel") executed by Landlord or Lessor with respect to each Lease Agreement;
(iv) in the event of the existence of any lien, encumbrance, deed of trust or mortgage existing on or with respect to any parcel of Leased Real Property, a Non-Disturbance Agreement executed by such lien holder, encumbrancer or mortgagee;
(v) evidence reasonably satisfactory to Buyer that all Land and Improvements on each parcel of Leased Real Property is in compliance with all applicable zoning ordinances and other laws, rules and/or regulations governing the use of each such property;
(vi) evidence reasonably satisfactory to Buyer that each parcel of Leased Real Property is not in violation of any law law, rule regulation or code, including without limitation all applicable environmental and/or hazardous substances laws, and all applicable building codes and ordinances, together with any other applicable law, ordinance, rule or regulation pertaining to or governing the ownership, occupancy and/or use of such property;
(vii) Buyer shall have received copies of Certificates of Occupancy with respect to all parcels of Leased Real Property evidencing lawful occupancy of each such parcel by Seller;
(viii) Buyer shall have received title commitments and title exception documents from the Title Company evidencing that it intends there are no violations of deed restrictions or other recorded documents with respect to commence proceedings any such property and that there are no mortgages, liens, encumbrances or other matters of record which would, hinder or interfere with the current use and/or occupancy of any parcel of Leased Real Property which has not been satisfied to restrain Buyer's sole satisfaction at or prior to Closing;
(ix) Buyer shall have received a survey of each parcel of Leased Real Property duly prepared or updated to a date not more than 60 days prior to Closing, together with a certificate executed by Seller at Closing certifying to Buyer that there have been no material changes with respect to the Land or the Improvements upon the Land constituting each parcel of Leased Real Property; and
(x) Buyer shall have received and approved all Closing documents including without limitation all deeds to the Owned Real Property, Assignments of Leases with respect to the Leased Real Property and any and all other documents, certificates, resolutions and agreements which may be necessary or appropriate to close and carry out the terms of the transaction set forth in this Agreement.
(j) Mr. Gonzalez shall have entered into an employment agreemenx xxxx xxx Xuyer in the form of Exhibit 2.3(j);
(k) there shall not have been any material adverse change in the financial condition, business of the Restaurants, or in the condition of the Restaurant Assets;
(l) the Seller shall have delivered to the Buyer a Certificate of Good Standing for each entity comprising the Seller issued by the State of Texas no more than thirty (30) days prior to Closing;
(m) all necessary director and shareholder resolutions, waivers and consents, and all other actions to be taken by the Seller and the Shareholders in connection with consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third partiesall certificates, including federalinstruments, state, local, foreign and other governmental authorities, necessary documents required to consummate effect the transactions contemplated hereby shall have been obtainedhereby, except where including deeds and bills of sale, will be reasonably satisfactory in form and substance to the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the ClosingBuyer and its counsel;
(fn) From Buyer shall have received all keys to all locks on the Real Property;
(o) Buyer shall have received an Owner's Policy of Title Insurance underwritten by the Title Company in the amount of the Purchase Price allocated to the Owned Real Property issued by Title Company, insuring that Buyer is the owner thereof subject only to the Permitted Encumbrances and the standard printed exceptions included in a Texas standard form owner's policy of title insurance; provided, however, that (i) the standard exception for discrepancies, conflicts, or shortages in area shall be deleted except for "shortages in area", (ii) such policy shall have "None of Record" endorsed regarding restrictions except for restrictions that are Permitted Encumbrances, (iii) the rights of parties in possession shall be deleted, and (iv) the standard exception for taxes shall be limited to the year in which the Closing occurs, marked "not yet due and payable", and subsequent years and subsequent assessments for prior years due to change in land usage or ownership;
(p) Current certificate issued by company acceptable to Buyer reflecting that since the date of this Agreement through the Closingsearches furnished pursuant to Section 4.8(c) hereof no Uniform Commercial Code filings, no Material Adverse Effect of Dourave chattel mortgages, assignments, pledges, or other encumbrances have been filed in the offices of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect Secretary of Dourave or State of the SubsidiariesState of Texas or the County Clerk of each county where the Real Property is located, with reference to the Real Property;
(gq) Dourave the Seller and the Shareholders shall have furnished delivered or caused to Buyer executed resignations and releases be delivered the items referenced in forms acceptable to Buyer from each of its officers and directorsSection 2.2(a);
(hr) Dourave fee titles and all leasehold interests (if any) in and to all parcels of Owned Real Property and all leasehold interests in and to Leased Real Property shall be conveyed to Buyer at Closing free of all leases, tenants, lessees or other occupants, whether permitted or unpermitted, other than Permitted Encumbrances;
(s) Seller shall have furnished delivered or be prepared to unconditionally deliver to Buyer at Closing possession of all required closing documents for each parcels of Owned Real Property, Leased Real Property and all other restaurant assets free and clear of all liens, encumbrances, mortgages, restrictions, conditions and other matters affecting title/occupancy of the Minor Shareholder Transactions executed by restaurant assets, subject only to the applicable Minor ShareholderPermitted Encumbrances;
(t) a legal opinion from Seller's counsel, dated the date of Closing to the effect that:
(i) Each of Rxxxx XxXxxxxx entity comprising Seller is a corporation validly existing and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding in good standing under the Notes Payable laws of the State of Texas (as to which opinion, such counsel may rely upon certificates from officials of the State of Texas) and each has all requisite power and authority to own its assets and to conduct the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx Business in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and
(m) On or prior to the Closing Date, the Sellers and Dourave shall have delivered to Buyer each of the following:
(i) Dourave’s minute books, stock transfer records, corporate seal and other materials related to Dourave’s corporate administrationmanner heretofore conducted;
(ii) copies The consummation of the minute books, stock transfer records, transactions contemplated hereby have been duly authorized by all necessary corporate seal action on the part of each Seller and other materials related to each of the Subsidiaries’ corporate administrationits Shareholders;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, The execution and delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and will not result in any violation of, or be in conflict with provision of law, the Articles of Incorporation or Bylaws of each Seller;
(Biv) the STG_331658.1 organizational documents of DouraveNo consent, along approval, authorization, order, registration, declaration, filing or qualification by or with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have any court or governmental authority which has not been amended obtained is required of Seller under existing law to authorize the execution or rescindeddelivery of this Agreement by Seller; and
(ivv) incumbency certificates executed on behalf To the best of Dourave by its corporate secretary certifying such counsel's knowledge, there is no action, suit, proceeding or investigation pending or threatened against Seller or any of their properties or assets which questions the signature and office validity of each officer executing this Agreement or any action taken or to be taken pursuant hereto.
(u) Seller shall have provided Buyer with evidence satisfactory to Buyer that Seller has terminated its Equipment Lease with respect to its point of sale cash register system and such other agreements that Seller has received title to said assets, free and clear of any liens, claims or encumbrances and that same are included as part of Restaurant Assets;
(v) Buyer and Seller recognize and agree that the facilitation/application of liquor licenses shall begin immediately subsequent to the Effective Date and continue cooperatively and expeditiously until completion. However, in the event that Buyer shall not have secured from the Texas Alcoholic Beverage Commission all wine, beer and liquor permits to sell beverages at each of the restaurant locations, Seller shall enter into a Interim Management Agreement and Interim Concession Agreement as to any location that Buyer does not have a required permit in the forms set forth as Exhibits 2.3(v)-1 and 2.3(v)-2 attached hereto and made a part hereof for all purposes; and
(w) Buyer, Guarantor, Seller and Shareholders shall have reached mutual agreement on all documents reasonably necessary for consummation of the transactions contemplated by this Agreement as Buyer may requestAgreement, including but not limited to the documents referred to in Sections 2.2(a), (b) and (c) and Sections 1.3.1 and 2.3(u) (exclusive of the Exhibits which have been agreed upon).
Appears in 1 contract
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation The obligations of Buyer to consummate the transactions to be performed contemplated by it in connection with the Closing shall be this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each satisfaction of the following conditions, and, as applicable, the delivery of the following items as of the Closing Date:
(ai) The since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company or the Company Shares, nor shall any events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect with respect to the Company or the Company Shares;
(ii) no suit or action by any third party or any investigation, inquiry, or proceeding by any Governmental Authority, or any legal or administrative proceeding shall have been instituted or threatened on or before the Closing Date which: (i) questions the validity or legality of this Agreement or any transaction contemplated herein, (ii) seeks to enjoin any transaction contemplated herein, or (iii) seeks material damages on account of the consummation of the Transaction that would have a Material Adverse Effect;
(iii) Buyer shall have obtained adequate equity or debt financing to fund the Estimated Closing Consideration;
(iv) Seller Parties and the Company shall have delivered to Buyer the documents to be delivered by it pursuant to Section 2.3(b);
(v) each of the representations and warranties of the Sellers Seller Parties and Dourave the Company contained in this Agreement shall be true and correct in all material respects at as of the Closing, with the same force and effect as if made as of the Closing Date as if (other than such representations and warranties were as are made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) as and to the extent that such representations or warranties speak as of a specific date or time other than the Closing Dateanother date, which need shall be true and correct as of such date), except in either case where any failure of a representation or warranty to be so true and correct, either individually or in the aggregate, would not result in a Material Adverse Effect;
(vi) the covenants and agreements of the Seller Parties and the Company contained in Sections 5.1 through 5.5 shall be complied with by each Seller Party and the Company on or before the Closing in all material respect only as respects; and
(vii) No Litigation will be pending wherein an unfavorable judgment, decree or order would prevent the performance of this Agreement or the consummation of any of the specified date or time;
(b) The Sellers and Dourave shall have performed all agreements and covenants required hereby to be performed by them prior to or at the Closing Date; providedtransactions contemplated hereby, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(c) There shall be delivered to Buyer a certificate signed by each of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b);
(d) No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit declare unlawful the transactions contemplated by this Agreement or cause such transactions to obtain an amount of damages or other material relief in connection with the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries;
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and
(m) On or prior to the Closing Date, the Sellers and Dourave shall have delivered to Buyer each of the following:
(i) Dourave’s minute books, stock transfer records, corporate seal and other materials related to Dourave’s corporate administration;
(ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may request.
Appears in 1 contract
Conditions to Buyer’s Obligations to Close. Unless waived by Buyer in writing, the obligation The obligations of Buyer to consummate effect any or all of the transactions to be performed contemplated by it in connection with the Closing this Agreement shall be subject to the satisfaction, on fulfillment at or prior to the Closing Date, of each the following conditions or a waiver in writing by the Buyer of the following conditions:
(ai) The representations and warranties of the Sellers and Dourave contained Shareholder set forth in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at date of this Agreement and as of the Closing Date;
(ii) Shareholder shall have surrendered to Buyer the Company Shares without any Encumbrances, except by delivery of duly executed and irrevocable VPS transfer instructions(s), in a form reasonably satisfactory to Buyer, assigning all the Company Shares to Buyer and deliver to the Buyer a transcript from the Company’s VPS account manager’s screen evidencing that the Company Shares have been transferred out of the VPS account(s) of the Shareholder and to the VPS account of Buyer free and clear of all Encumbrances;
(iii) Prior to the successful registration of the Initial Shares with the Norwegian Register of Business Enterprises, none of the following shall have occurred: (i) as and to trading in securities generally on the extent that NASDAQ Global Select Market shall have been suspended or materially limited or the facts and conditions upon which settlement of such representations and warranties are based are expressly required trading generally shall have been materially disrupted or permitted to be changed minimum prices shall have been established on any such exchange or such market by the terms hereof United States Securities and Exchange Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) as and to a banking moratorium shall have been declared by federal or New York state authorities, (iii) the extent that such representations United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or warranties speak as there shall have been a declaration of a specific national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or time other than the Closing Dateeffect of international conditions on the financial markets in the United States shall be such), which need be true and correct in all material respect only as to make it impracticable or inadvisable to proceed with Buyer’s purchase of the specified date or timeCompany Shares on the terms and in the manner contemplated by this Agreement;
(biv) The Sellers Prior to the successful registration of the Initial Shares with the Norwegian Register of Business Enterprises, there shall not have occurred any downgrading, or any public notice having been given of (A) any intended downgrading or (B) any review or possible change that does not indicate an improvement in the rating accorded any securities of or guaranteed by Trico by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the U.S. Securities Act of 1933, as amended
(v) Buyer shall own or have the contractual right to acquire at least 50.1% of the Company’s Fully Diluted Common Stock and Dourave the Initial Shares shall have performed all agreements been approved by the Company’s Board of Directors, issued by the Company and covenants required hereby to be performed by them prior to or at successfully registered in the Closing Date; provided, however, that Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(c) There shall be delivered to Buyer a certificate signed by each Norwegian Register of the Sellers and by an officer of Dourave certifying, as the case may be, their respective compliance with the conditions set forth in Sections 7.2(a) and 7.2(b)Business Enterprises;
(dvi) Shareholder shall have executed and delivered the Phantom Stock Units Agreement and the Registration Rights Agreement; and
(vii) No governmental agency or other Person shall have commenced or threatened the commencement of an action or proceeding shall have been instituted before a court or other governmental body or by seeking to prohibit the consummation of any governmental agency or public authority to restrain or prohibit of the transactions contemplated by this Agreement or adversely affecting the right of Buyer to obtain an amount of damages or other material relief in connection with own the execution of this Agreement; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the transactions contemplated by this Agreement; STG_331658.1
(e) All consents, approvals and waivers from third parties, including federal, state, local, foreign and other governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have, individually or in the aggregate, a Material Adverse Effect on the business of the Dourave following the Closing;
(f) From the date of this Agreement through the Closing, no Material Adverse Effect of Dourave or of the Subsidiaries shall have occurred and there shall exist no fact or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of Dourave or of the Subsidiaries;
(g) Dourave shall have furnished to Buyer executed resignations and releases in forms acceptable to Buyer from each of its officers and directors;
(h) Dourave shall have furnished to Buyer all required closing documents for each of the Minor Shareholder Transactions executed by the applicable Minor Shareholder;
(i) Each of Rxxxx XxXxxxxx and Sxxxxx Xxxxxx shall have accepted offers of employment with the Buyer on the terms attached hereto as Exhibit D;
(j) Buyer shall have received reasonable evidence of all amounts outstanding under the Notes Payable and the Long Term Liabilities and agreement from each creditor thereunder that upon repayment of such amount, there shall be no further obligations thereunder, and the amounts outstanding under the Notes Payable shall not exceed $50,000 above the amounts owed to Hxxxx Xxxxxxx and Sxxxxx Xxxxxx in the aggregate;
(k) The Sellers and Dourave shall have furnished to Buyer an opinion of counsel to Dourave, dated as of the Closing Date and substantially in the form attached hereto as Exhibit E;
(l) Buyer shall have determined in its reasonable discretion that the issuance of the Buyer Shares to the Sellers contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder; and
(m) On or prior to the Closing Date, the Sellers and Dourave shall have delivered to Buyer each of the following:
(i) Dourave’s minute books, stock transfer records, corporate seal and other materials related to Dourave’s corporate administration;
(ii) copies of the minute books, stock transfer records, corporate seal and other materials related to each of the Subsidiaries’ corporate administration;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Dourave authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the STG_331658.1 organizational documents of Dourave, along with certificates executed on behalf of Dourave by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and organizational documents, respectively, and that such resolutions and organizational documents were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Dourave by its corporate secretary certifying the signature and office of each officer executing this Agreement and such other agreements contemplated by this Agreement as Buyer may requestCompany Shares.
Appears in 1 contract
Samples: Share Purchase Agreement (Trico Marine Services Inc)
