Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (1) The representations and warranties of Seller set forth in Section 3 shall be true and correct in all material respects at and as of the Closing Date; (2) Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (3) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (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the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of Buyer to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (4) On or before the Closing Date, Seller will deliver to Buyer the following documents and instruments (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized: (A) a closing statement approved by the Parties (the “Closing Statement”); (B) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”); (C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date; (D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller; (E) a reaffirmation of all representations and warranties of Seller as set forth herein; and (F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing. (5) At Closing, Seller shall: (A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing; (B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Brooklyn Cheesecake & Desert Com), Membership Interest Purchase Agreement (Brooklyn Cheesecake & Desert Com)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be collectively in substantially similar condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” and “Material Adverse Effect,” in which case Seller shall have performed and complied with all of such covenants in all respects through the Closing;
(3c) The Companies and/or Seller shall have procured all of the third-party Consents specified in Schedule 3.1(d) and 4.3(b);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Companies, or for such companies (iv) affect adversely the right of the Companies to own their Assets, including the Properties, and to operate their respective businesses Businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) There has not been made or threatened by any Person a claim asserting that such Person (i) is the holder of record or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the Companies, or any other voting, equity or ownership interest, in or to the Companies, (ii) is entitled to all or any portion of the Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, including the Properties, owned by the Companies;
(f) The Companies shall have received, acquired and obtained all nonappealable and unrestricted Governmental Authorizations, Consents, Permits, Approvals, licenses, and other permits and approvals, and all pending applications therefor or renewals thereof, required or necessary for the ownership, construction, development and operation of Businesses on the Properties by the Companies and Buyer, including local zoning approval, any required special use or conditional use permits, local approval that the operation of the Business and the Properties is consistent with the local solid waste management plan, if any, and all permits issued by the Commonwealth of Virginia, Department of Environmental Quality, for the ownership, operation, development and construction of the Businesses on the Properties, such Consents, licenses, Governmental Authorizations, permits and approvals to be in accordance with all Legal Requirements and satisfactory to Buyer in its sole discretion, with respect to airspace requirements, operating conditions, and any other restrictions or requirements;
(g) Seller shall have caused the Companies to terminate, without liability to such Company or Buyer, all Excluded Contracts, or assign all Excluded Contracts to Seller or any third party;
(h) On or before the Closing DateClosing, Seller will deliver shall file for and obtain in the name of the applicable Company all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Properties, or the Businesses, in order for the Permits to be issued to the Company. Seller covenants to use good faith and due diligence to actively pursue the Approvals. Seller shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Companies to obtain the Permits and Approvals;
(i) Seller shall have delivered to Buyer a certificate to the following documents and instruments (the “Sellers Closing Documents”), effect that each of which will have been duly executed and, where appropriate, acknowledged or notarized:the conditions specified above in Section 6.1(a)-(h) is satisfied in all respects;
(Aj) Seller shall have delivered to Buyer a closing statement approved by the Parties Closing Statement and accompanying loan payoff statements showing any and all Current Seller Liabilities which such Current Seller Liabilities shall be paid and satisfied at or before Closing in accordance with Section 2.4 (the “Closing Statement”);
(B) a copy, certified and shall have delivered to Buyer the list of all current Accounts Receivables as contemplated by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”Section 4.11(c);
(Ck) a certificate Buyer shall have received the resignations, effective as of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
, of each officer, director, employee, independent contractor, manager or member of the Companies whom Buyer shall have specified in writing five (5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties Business Days prior to Closing;
(Bl) Purchase Two Hundred Thirty Thousand Seller, Guarantor and no/100ths certain Related Persons of Seller, including Rxxxxx X. Xxxxxx, Cxxxxxx X. Xxxxxx, Txxxxxx Xxxx, and Jxxx Xxxxx shall have executed and delivered to Buyer a non-competition, non-solicitation, and confidentiality agreements that, among other things, prevents Seller, certain of its Related Persons, including Rxxxxx X. Xxxxxx, Cxxxxxx X. Xxxxxx, Txxxxxx Xxxx, and Jxxx Xxxxx, and Guarantor from competing with the Buyer and the Companies or the Businesses of the Companies and the business of Buyer within a 100 mile radius of each of the Properties or soliciting customers of the Companies for a period of five (230,0005) shares years following the Closing Date or from disclosing confidential information regarding the Companies for a period of common stock of Parent currently owned by Parent Majority Shareholder eight (8) years from the Closing Date. Such agreements shall be substantially in the forms attached hereto as Schedules 6.1(l)(i), 6.1(l)(ii) and 6.1(iii) respectively (the “Xxxxxxx SharesRestrictive Covenants Agreements”);
(m) for If applicable, Seller shall have delivered to Buyer a purchase price non-foreign affidavit dated as of Two Hundred Thirty Thousand the Closing Date, sworn under penalty of perjury and no/100ths Dollars in form and substance required under the Treasury Regulations issued pursuant to Code Section 1445, stating that Seller is not a “Foreign Person” as defined in Code Section 1445;
($230,000.00), by delivering at Closing, n) Seller shall have delivered to Buyer (i) Eighty Thousand a copy of the articles of organization of the Companies certified on or soon before the Closing Date by the Clerk of the Virginia State Corporation Commission (or comparable officer), (ii) a certificate of fact for the Companies issued on or soon before the Closing Date by the Clerk of the Virginia State Corporation Commission (or comparable officer) and no/100ths Dollars the Secretary of State ($80,000.00or comparable officer) of such purchase price each jurisdiction in cash which the Companies are qualified to Parent Majority Shareholderdo business, (iii) limited liability company records of the Companies and (iv) all other Organizational Documents;
(o) Seller shall have delivered to Buyer a certificate of the secretary or an assistant secretary of the Companies, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, certifying as to (i) no amendments to the articles of organization or other Organizational Documents of the Companies since Effective Date; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 any resolutions of the members of the Companies relating to this Agreement and the Contemplated Transactions;
(p) Buyer and Rxxxxx X. Xxxxxx shall have executed and delivered an Employment Agreement substantially in the form attached hereto as Schedule 6.1(p) (the “Employment Agreement”);
(q) Buyer shall have received a commitment for financing in the form and substance satisfactory to Buyer in its sole discretion;
(r) Seller shall have executed and delivered to Buyer an Assignment of the Membership Interests in the form of Exhibit 6.1(r);
(s) Seller shall have executed and delivered to Buyer a certificate from Seller that the representations and warranties of Seller set forth herein are true and correct as of Closing;
(t) Seller shall have delivered to Buyer an executed landlord’s consent acceptable to Buyer with respect to each lease agreement identified on Schedule 6.1(t); and (u) all actions to be taken by Seller in connection with Contemplated Transactions and all certificates, opinions, instruments, and other documents required to effect the Contemplated Transaction shall be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
(v) Seller shall have delivered to Buyer a certificate of the Manager of Seller, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, certifying as to any resolutions of the Members and Manager of the Seller relating to this Agreement and the Contemplated Transactions.
(w) Seller shall have delivered to Buyer a complete list of the recurring customers of the Businesses, whether or not such recurring customers are bound by a written contract or agreement with the Companies.
(x) CFS Disposal shall have obtained complete and full release from all claims asserted against it in the Andenaur Case (as defined in Schedule 2.4(a)(5)(B4.20) attached hereto and made a part hereof, in favor of an order dismissing all claims against CFS Disposal endorsed by all parties to the Parent Majority Shareholder in Andenaur Case shall have been filed with the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledCourt at Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller Sellers set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Each Seller shall have executed and delivered to Buyer a certificate dated as of the Closing Date that all such representations and warranties made by them are true and correct in all respects as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be in the same condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(3c) The Companies and/or Sellers shall have procured all of the third-party consents specified in Schedule 3.1(c) and 4.3(b) and 4.16(v);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Companies, or for such companies (iv) affect adversely the right of the Companies to own their Assets, including the Properties, and to operate their respective businesses Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) There has not been made or threatened by any Person a claim asserting that such Person (i) is the holder of record or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the Companies, or any other voting, equity or ownership interest, in or to the Companies, (ii) is entitled to all or any portion of the Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, including the Properties, of the Companies;
(f) The Companies shall have received, acquired and obtained the all nonappealable and unrestricted Governmental Authorizations, Consents, Permits, Approvals, licenses, and other permits and approvals, and all pending applications therefor or renewals thereof, required or necessary for the ownership, construction, development and operation of Business on the Properties by the Companies and Buyer, and all permits issued by the State of Oklahoma and Tulsa County, Oklahoma, for the ownership, operation, development and construction of the Business on the Properties, such Consents, licenses, Governmental Authorizations, permits and approvals to be in accordance with all Legal Requirements and satisfactory to Buyer in its sole discretion, with respect to operating conditions, and any other restrictions or requirements;
(g) Sellers shall have caused the Companies to terminate, without Liability to such Companies or Buyer, all Excluded Contracts, or assign all Excluded Contracts to Sellers or any third party; and
(h) On or before the Closing DateClosing, Seller will deliver Sellers shall file for and obtain in the name of the applicable Companies all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Properties, or the Business, in order for the Permits to be issued to the Companies. Sellers covenant to use good faith and due diligence to actively pursue the Approvals. Sellers shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Companies to obtain the Permits and Approvals;
(i) Sellers shall have delivered to Buyer a certificate to the following documents and instruments (the “Sellers Closing Documents”), effect that each of which will have been duly executed and, where appropriate, acknowledged or notarized:the conditions specified above in Section 6.1(a)-(h) is satisfied in all respects;
(Aj) Sellers shall have delivered to Buyer a closing statement approved by Closing Statement and accompanying loan payoff statements showing any and all Retained Liabilities of the Parties Companies which such Retained Liabilities shall be paid and satisfied within 90 days of Closing in accordance with Section 2.4 (the “Closing Statement”);
(Bk) a copyBuyer shall have received the resignations, certified by an officer effective as of Sellerthe Closing, of the resolutions each officer, director, employee, manager or member of the Board Companies other than those whom Buyer shall have specified in writing on or prior to Closing, and all required notices of Directors such resignations shall have been provided, Buyer shall have received from each such employee, officer, directors, manager or member a release of the Companies and Buyer in the form substantially the same as the release provided by the Sellers in Section 5.12;
(l) Sellers shall have executed and delivered to Buyer a non-competition, non-solicitation, and confidentiality agreement that, among other things, prevents Sellers and their Related Persons from competing with the Buyer and the holders of a majority of its issued and outstanding capital stock authorizing and approving Companies or the execution and delivery of this Agreement, the sale Business of the Membership Interests Companies and the consummation business of Buyer within a 100 mile radius of each of the transactions contemplated herein Properties for a period of two (sometimes referred to 2) years following the Closing Date, substantially in the form attached hereto as Schedule 6.1(l) (the “Contemplated TransactionsRestrictive Covenants Agreement”);
(Cm) If applicable, Sellers shall have delivered to Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code Section 1445, stating that each Seller is not a “Foreign Person” as defined in Code Section 1445 (the “FIRPTA Affidavit”);
(n) Sellers shall have delivered to Buyer (i) a copy of the articles of organization of the Companies certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Companies, (ii) a certificate of existence of Seller good standing for the Companies issued by the Delaware Secretary of State, dated not more than ten (10) days on or soon before the Closing DateDate by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Companies and of each jurisdiction in which the Companies is qualified to do business, (iii) the minute books and all corporate records of the Companies and (iv) all other Organizational Documents;
(Do) assignment agreements conveying Sellers shall have delivered to Buyer a certificate of the Membership Interests secretary or an assistant secretary of the Companies, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, in a form reasonably acceptable certifying as to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) no amendments to the articles of such purchase price in cash to Parent Majority Shareholderorganization or other Organizational Documents of the Companies since Effective Date; and (ii) a purchase money convertible promissory note due on or before December 31any resolutions of the members of the Companies relating to this Agreement and the Contemplated Transactions;
(p) Buyer shall have executed an Employment Agreement with XxXxxxxx, 2014 Guest, Xxxxxxx, and Xxxxxxxxxx substantially in the form set forth in Schedule 2.4(a)(5)(B) of attached hereto as Schedule 6.1(p)(i) and made a part hereof, in favor Employment Agreements with such other key employees the Companies of the Parent Majority Shareholder Buyer’s choosing substantially in the amount of One Hundred Fifty Thousand form attached hereto as Schedule 6.1(p)(ii); and,
(q) all actions to be taken by Sellers in connection with Contemplated Transactions and no/100ths Dollars ($150,000.00)all certificates, opinions, instruments, and other documents required to effect the Contemplated Transaction shall be reasonably satisfactory in form and substance to Buyer. Upon Seller’s purchase of Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledClosing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller Sellers set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Each Seller shall have executed and delivered to Buyer a certificate dated as of the Closing Date that all such representations and warranties made by them are true and correct in all respects as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be in the same condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(3c) The Company and/or Sellers shall have procured all of the third-party consents specified in Schedule 3.1(c);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Company, or for such companies (iv) affect adversely the right of the Company to own their Assets, and to operate their respective businesses Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) On There has not been made or before threatened by any Person a claim asserting that such Person (i) is the Closing Dateholder of record or the beneficial owner of, Seller will deliver or has the right to Buyer acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the following documents and instruments Company, or any other voting, equity or ownership interest, in or to the Company, (ii) is entitled to all or any portion of the “Sellers Closing Documents”)Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, each of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”)Company;
(Bf) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”)Omitted;
(Cg) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing DateOmitted;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties of Seller set forth in Section 3 shall be true and correct in all material respects at and as of the Closing Date;
(2) Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(3) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (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 Buyer to own the Membership Interests Assets or for such companies the Property or the Seller to operate their respective businesses the Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4) On The Seller shall have in place all non-appealable and unrestricted approvals, permits, franchise rights, contracts, consents, licenses and other authorizations, and all pending applications therefore or before renewals thereof necessary for the Closing Dateownership, Seller will deliver to Buyer development and operation of the following documents Business, Property and instruments Assets and the occupancy of the Property (the “Sellers Closing DocumentsPermits”). Subject to the foregoing, each Buyer and the Seller agree that Buyer shall be responsible for obtaining all approvals and authorizations from the Missouri Department of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by Environmental Resources necessary for the Parties (the “Closing Statement”);
(B) a copy, certified by an officer of Seller, transfer and assignment of the resolutions Permits required for ownership and operation of the Board of Directors Eagle Ridge Landfill. The Seller agrees to cooperate with and the holders of a majority of its issued provide all information, documentation and outstanding capital stock authorizing other assistance as reasonably requested by Buyer to secure such approvals and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”);
(C) a certificate of existence of authorizations. Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request shall be responsible for the purposes of properly documenting and giving effect obtaining consents to the Contemplated Transactions assignment of Assigned Contracts to occur at Buyer reasonably deems necessary by Buyer to operate the ClosingBusiness.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand The Property and no/100ths Dollars ($70,000.00) in satisfaction all Assets shall be free and clear of all of Parent’s shareholder loans liens or third party claims and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closingshall be in good working order;
(B6) Purchase Two Hundred Thirty Thousand and no/100ths The Seller shall not have any debt other than as set forth in Schedule 2.6(a)(6);
(230,0007) shares of common stock of Parent currently owned by Parent Majority Shareholder The Seller shall not be obligated to any contracts other than the customer contracts (the “Xxxxxxx SharesCustomer Contracts”) for and the vendor and supplier contracts (the “Seller Contracts”) described in Schedule 2.6(a)(7);
(8) The Customer Contracts and the Seller Contracts shall be in full force and effect, subject to any such Customer Contracts that are involved in any bankruptcy, insolvency or receivership proceedings;
(9) Buyer shall have entered into a purchase price of Two Hundred Thirty Thousand non-compete and no/100ths Dollars non-solicitation agreement ($230,000.00the “Non-Compete Agreement”) with the Seller and Seller’s parent corporation, WCA Waste Corporation, a Delaware corporation (“Parent”), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(BExhibit 2.6(a)(9);
(10) attached hereto Seller shall have executed and made a part hereof, in favor delivered to Buyer all of the Parent Majority Shareholder Seller Closing Documents as defined herein;
(11) Title to the Property shall be insurable subject only to the exceptions set forth in Schedule 2.6(a)(11) (the amount of One Hundred Fifty Thousand and no/100ths Dollars “Permitted Exceptions”) by a title insurance company acceptable to Buyer;
($150,000.00). Upon Seller’s purchase 12) Within five (5) days of the Xxxxxxx Shareseffective date of this Agreement, Seller shall have delivered to Buyer all surveys, leases and reports in their possession, custody or control which in any way refer to or relate to the Xxxxxxx Shares will be immediately cancelledProperty; and
(13) Buyer’s engineers have verified through field testing that methane gas levels within the landfill located on the Property have been less than 2.5% by volume for twenty one days prior to Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller set forth in Section 3 shall be true and correct in all material respects at and as of the Closing Date;
(2) , except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(3b) On or before the Closing, Seller shall file for and obtain in the name of Buyer all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Property, or the Businesses, in order for the Permits to be issued to the Buyer. Seller covenants to use good faith and due diligence to actively pursue the Approvals. Seller shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Companies to obtain the Permits and Approvals;
(c) The Seller shall have procured all of the third-party Consents specified in Schedule 3.3 and 3.7(b);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this AgreementOption, (Bii) cause any of the transactions contemplated by this Agreement Option to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests or for such companies Assets, including the Property, and to operate their respective businesses the Businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) On Seller shall execute any additional agent authorization documentation and any other document, instrument or before certificate specifically required by any Governmental Body to permit the Buyer to obtain the Permits and Approvals;
(f) The Assets shall be free and clear of all liens or third party claims.
(g) Seller shall have executed and delivered to Buyer a non-competition, non-solicitation, and confidentiality agreements acceptable to Buyer that, among other things, prevents Seller and Xxx Xxxxxx from competing with the Buyer or the Businesses or the business of Buyer within a 150 mile radius of each of the Property or soliciting customers or employees of the Buyer for a period of five (5) years following the Closing Date or from disclosing confidential information regarding the Companies for a period of eight (8) years from the Closing Date, Seller will deliver to Buyer . Such agreements shall be substantially in the following documents and instruments form of Paragraph 19.15 of the Lease Agreement (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing StatementRestrictive Covenants Agreements”);
(Bh) Seller shall have delivered to Buyer a copy, certified by an officer of Seller, non-foreign affidavit dated as of the resolutions Closing Date, sworn under penalty of perjury and in form and substance required under the Board of Directors and the holders of Treasury Regulations issued pursuant to Code Section 1445, stating that Seller is not a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to “Foreign Person” as the “Contemplated Transactions”)defined in Code Section 1445;
(Ci) Seller shall have executed and delivered to Buyer a certificate of existence of from Seller issued by that the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents herein are true and correct as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(Bj) Purchase Two Hundred Thirty Thousand All actions to be taken by Seller in connection with Contemplated Transactions and no/100ths all certificates, opinions, instruments, and other documents required to effect the Contemplated Transaction shall be reasonably satisfactory in form and substance to Buyer;
(230,000k) shares Seller shall have delivered to Buyer a certificate of common stock the Secretary of Parent currently owned by Parent Majority Shareholder Seller, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, certifying as to any resolutions of the Members and Manager of the Seller relating to this Option and the Contemplated Transactions;
(l) Seller shall have executed a general warranty deed for the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00)Land, by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash subject only to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 the Permitted Exceptions in the form set forth in Schedule 2.4(a)(5)(B) attached hereto as Schedule 6.1(i);
(m) An authorized representative of Seller shall have executed and made delivered a part hereof, general seller’s affidavit in favor of form regarding the Parent Majority Shareholder Land acceptable to Buyer in the amount form attached hereto as Schedule 6.1(j);
(n) Such other documents as the third party title insurer insuring the Land may require issuing a policy of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00)title insurance subject only to the Permitted Exceptions. Upon Seller’s purchase of Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledClosing.
Appears in 1 contract
Samples: Terms and Conditions of Sale and Purchase (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions Closing is subject to the satisfaction of the following further conditions:
(a) Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it in connection with on or prior to the Closing is subject to satisfaction of the following conditions:Date;
(1b) The Subject to the cure provisions of Section 12.1(f) of this Agreement, the representations and warranties of Seller set forth contained in Section 3 this Agreement at the time of its execution and delivery, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date with only such exceptions as would not in the aggregate reasonably be expected to have a Material Adverse Effect;
(2c) Buyer shall have received a certificate signed by an officer of Seller as to Sections 9.2(a) and (b) of this Agreement;
(d) Seller shall have performed executed and complied delivered to Buyer certificates of non-foreign status satisfying the requirements of Treasury Regulations Section 1.1445-2(b).
(e) Buyer shall have received binding commitments to issue policies of title insurance consistent with Section 5.5 of this Agreement, dated the Closing Date, in an aggregate amount equal to the amount of the Purchase Price allocated to the Real Property, deleting all requirements of its covenants hereunder Seller as listed in ALTA Schedule B-1, amending the effective date to the date and time of recordation of the deed transferring title to the Real Property to Buyer with no exception for the gap between Closing and recordation, deleting or insuring over Title Objections that were committed by Seller to be so cured or removed reflect the Permitted Exceptions and otherwise in form reasonably satisfactory to Buyer insuring Buyer’s interest in each parcel of Real Property to the extent required by Section 5.5 of this Agreement.
(f) Seller shall transfer good title to the Real Property by Special Warranty Deed subject to the Permitted Exception, and to all material respects through other Purchased Assets, free and clear of any lien or encumbrance (including any capital lease). Seller shall pay in full any capital leases and shall take title to any leased machinery and equipment included in the ClosingPurchased Assets for purposes of conveying such machinery and equipment to Buyer in accordance herewith;
(3g) No actionAs of the Closing Date or, suitif sooner, or proceeding the commencement of the New Lease, the Purchased Assets will be in substantially the same condition as they are on the date of this Agreement, reasonable wear and tear and, to the extent accepted by Buyer as provided in this Agreement, casualty excepted. There shall be pending no material adverse change in the physical condition of the Purchased Assets (due to casualty, environmental contamination or otherwise) from the completion of due diligence on such physical condition to Seller’s knowledgeeither the date of Closing or the commencement of the term of the New Lease, threatened before any court or quasi-judicial or administrative agency of whichever is sooner;
(h) Buyer shall have obtained any federal, state, localand local licenses, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunctionpermits, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of and approvals including the transactions contemplated by this Agreement, (B) cause any of Required Permits that are required to conduct the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of Buyer to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Business as it is presently being conducted;
(4i) On There will be no outstanding judgments or before orders against Seller or the Purchased Assets nor will there be any conditions which could reasonably be expected to interfere adversely with the conduct by Buyer of the Business immediately after Closing Date, Seller will deliver including without limitation any violation of applicable laws;
(j) Any consent required from any third party to Buyer the following documents and instruments (the “Sellers Closing Documents”), each transfer of which a Purchased Asset will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”)obtained;
(Bk) a copySeller shall have paid all Taxes, certified by an officer of Seller, of the resolutions of the Board of Directors including any applicable Excise Taxes on liquor and the holders of a majority of its issued wine products due and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred payable on or prior to as the “Contemplated Transactions”);
(C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(Dl) assignment agreements conveying Xxxxx Xxxxxxx and any other family members of Xx. Xxxxxxx residing on the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth hereinReal Property shall have vacated the Real Property after the Effective Date; and
(Fm) such other documents as Seller may reasonably request for the purposes has delivered a written notice of properly documenting and giving effect termination to the Contemplated Transactions to occur at tenant under the ClosingLease Agreement on April 30, 2013. .
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.
Appears in 1 contract
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to purchase of the Stock as provided herein shall be performed by it in connection with the Closing is subject to satisfaction fulfillment at or prior to the Closing, or written waiver by Buyer, of each of the following conditions:
(1a) The representations and warranties of Seller set forth contained in Section 3 this Agreement shall be true and correct in all material respects at on the date hereof and as of the Closing Date as though made as of the Closing Date;, except for changes (i) contemplated by this Agreement; or (ii) approved by Buyer.
(2b) Seller shall have duly performed and or complied with all of its covenants hereunder in all material respects through the Closing;obligations to be performed or complied with by it under the terms of this Agreement.
(3c) No actionSeller shall have delivered to Buyer (i) a certificate certifying to the fulfillment of the conditions set forth in paragraphs 3.2(a) and (b), suitand (ii) a copy of certified resolutions of its Board of Directors authorizing the sale of the Stock pursuant to this Agreement, or proceeding both of which shall be pending or in a form reasonably satisfactory to Buyer.
(d) Buyer shall have received an opinion from counsel to Seller’s knowledge, threatened before dated as of the Closing Date, substantially in the form attached hereto as Exhibit A. In rendering such opinion, counsel may rely to the extent it deems appropriate upon certificates of officers of Seller and of public officials as to factual matters and upon opinions of other counsel delivered together with such opinion.
(e) All government consents and licenses, permits, authorizations, approvals or, filings with and notifications to any court or quasi-judicial or administrative agency of any federalUnited States, state, local, local or foreign jurisdiction other governmental regulatory body required to be made or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, obtained or charge would (A) prevent made in connection with the 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, shall have been made or (C) affect adversely the right of Buyer to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);obtained.
(4f) On Buyer shall receive from Seller at or before prior to Closing, Seller's Closing Deliveries (as defined in section 3.4, below).
(g) The directors of Transition shall have resigned their offices effective as of the Closing Date, Seller will deliver to Buyer the following documents and instruments (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”);
(B) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”);
(C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.
Appears in 1 contract
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller Sellers set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Each Seller shall have executed and delivered to Buyer a certificate dated as of the Closing Date that all such representations and warranties made by them are true and correct in all respects as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be in the same condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(3c) The Company and/or Sellers shall have procured all of the third-party consents specified in Schedule 3.1(c) and 4.3(b) and 4.16(v);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Company, or for such companies (iv) affect adversely the right of the Company to own its Assets, including the Properties, and to operate their respective businesses Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) There has not been made or threatened by any Person a claim asserting that such Person (i) is the holder of record or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the Company, or any other voting, equity or ownership interest, in or to the Company, (ii) is entitled to all or any portion of the Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, including the Properties, of the Company;
(f) The Company shall have received, acquired and obtained the all nonappealable and unrestricted Governmental Authorizations, Consents, Permits, Approvals, licenses, and other permits and approvals, and all pending applications therefor or renewals thereof, required or necessary for the ownership, construction, development and operation of Business on the Properties by the Company and Buyer, and all permits issued by the State of Georgia and Xxxx County, Georgia, for the ownership, operation, development and construction of the Business on the Properties, such Consents, licenses, Governmental Authorizations, permits and approvals to be in accordance with all Legal Requirements and satisfactory to Buyer in its sole discretion, with respect to operating conditions, and any other restrictions or requirements;
(g) Sellers shall have caused the Company to terminate, without Liability to such Company or Buyer, all Excluded Contracts, or assign all Excluded Contracts to Sellers or any third party;
(h) On or before the Closing DateClosing, Seller will deliver Sellers shall file for and obtain in the name of the Company all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Properties, or the Business, in order for the Permits to be issued to the Company. Sellers covenant to use good faith and due diligence to actively pursue the Approvals. Sellers shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Company to obtain the Permits and Approvals;
(i) Sellers shall have delivered to Buyer a certificate to the following documents and instruments (the “Sellers Closing Documents”), effect that each of which will have been duly executed and, where appropriate, acknowledged or notarized:the conditions specified above in Section 6.1(a)-(h) is satisfied in all respects;
(Aj) Sellers shall have delivered to Buyer a closing statement approved by Closing Statement and accompanying loan payoff statements showing any and all Retained Liabilities of the Parties Company which such Retained Liabilities shall be paid and satisfied within 90 days of Closing in accordance with Section 2.4 (the “Closing Statement”);
(Bk) a copyBuyer shall have received the resignations, certified by an officer effective as of Sellerthe Closing, of the resolutions each officer, director, employee, manager or member of the Board Company other than those whom Buyer shall have specified in writing on or prior to Closing, and all required notices of Directors such resignations shall have been provided, Buyer shall have received from each such employee, officer, directors, manager or member a release of the Company and Buyer in the form substantially the same as the release provided by the Sellers in Section 5.12;
(l) Sellers shall have executed and delivered to Buyer a non-competition, non-solicitation, and confidentiality agreement that, among other things, prevents Sellers and their Related Persons from competing with the Buyer and the holders of a majority of its issued and outstanding capital stock authorizing and approving Company or the execution and delivery of this Agreement, the sale Business of the Membership Interests Company and the consummation business of Buyer within a 100 mile radius of each of the transactions contemplated herein Properties for a period of two (sometimes referred to 2) years following the Closing Date, substantially in the form attached hereto as Schedule 6.1(l) (the “Contemplated TransactionsRestrictive Covenants Agreement”);
(Cm) If applicable, Sellers shall have delivered to Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code Section 1445, stating that each Seller is not a “Foreign Person” as defined in Code Section 1445 (the “FIRPTA Affidavit”);
(n) Sellers shall have delivered to Buyer (i) a copy of the articles of organization of the Company certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Company, (ii) a certificate of existence of Seller good standing for the Company issued by the Delaware Secretary of State, dated not more than ten (10) days on or soon before the Closing DateDate by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Company and of each jurisdiction in which the Company is qualified to do business, (iii) the minute books and all corporate records of the Company and (iv) all other Organizational Documents;
(Do) assignment agreements conveying Sellers shall have delivered to Buyer a certificate of the Membership Interests secretary or an assistant secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, in a form reasonably acceptable certifying as to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) no amendments to the articles of such purchase price in cash to Parent Majority Shareholderorganization or other Organizational Documents of the Company since Effective Date; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 any resolutions of the members of the Company relating to this Agreement and the Contemplated Transactions;
(p) Buyer shall have executed employment agreements with Xxxxx and Xxxxx substantially in the form set forth in Schedule 2.4(a)(5)(B) of attached hereto as Schedule 6.1(p)(i) and made a part hereof, in favor Employment Agreements with such other key employees the Company of the Parent Majority Shareholder Buyer’s choosing substantially in the amount form attached hereto as Schedule 6.1(p)(ii);
(q) Xxxxxx Xxxxxxxx shall have executed and delivered to Buyer and the Company a certificate in the form of One Hundred Fifty Thousand Schedule 6.1(q); and,
(r) all actions to be taken by Sellers in connection with Contemplated Transactions and no/100ths Dollars ($150,000.00)all certificates, opinions, instruments, and other documents required to effect the Contemplated Transaction shall be reasonably satisfactory in form and substance to Buyer. Upon Seller’s purchase of Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledClosing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be in the same condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” and “Material Adverse Effect,” in which case Seller shall have performed and complied with all of such covenants in all respects through the Closing;
(3c) The Company and/or Seller shall have procured all of the third-party consents specified in Schedule 3.1(d) and 4.3(b) [and 4.16(i)];
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Company, or for such companies (iv) affect adversely the right of the Company to own its Assets, including the Properties, and to operate their respective businesses Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) There has not been made or threatened by any Person a claim asserting that such Person (i) is the holder of record or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the Company, or any other voting, equity or ownership interest, in or to the Company, (ii) is entitled to all or any portion of the Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, including the Properties, of the Company;
(f) The Company shall have received, acquired and obtained the all nonappealable and unrestricted Governmental Authorizations, Consents, Permits, Approvals, licenses, and other permits and approvals, and all pending applications therefor or renewals thereof, required or necessary for the ownership, construction, development and operation of Business by the Company and Buyer, including any required special use or conditional use permits, local approval that the operation of the Business is consistent with the local solid waste management plan, if any, and all permits issued by the State of Missouri, and Truesdale, Missouri, for the ownership, operation, development and construction of the Business, such Consents, licenses, Governmental Authorizations, permits and approvals to be in accordance with all Legal Requirements and satisfactory to Buyer in its sole discretion, with respect to airspace requirements, operating conditions, and any other restrictions or requirements;
(g) Seller shall have caused the Company to terminate, without Liability to the Company or Buyer, all Excluded Contracts, or assign all Excluded Contracts to Seller or any third party; and
(h) On or before the Closing DateClosing, Seller will deliver shall file for and obtain in the name of the applicable Company all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Business, in order for the Permits to be issued to the Company. Seller covenants to use good faith and due diligence to actively pursue the Approvals. Seller shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Company to obtain the Permits and Approvals;
(i) Seller shall have delivered to Buyer a certificate to the following documents and instruments (the “Sellers Closing Documents”), effect that each of which will have been duly executed and, where appropriate, acknowledged or notarized:the conditions specified above in Section 6.1(a)-(h) is satisfied in all respects;
(Aj) Seller shall have delivered to Buyer a closing statement approved by Closing Statement and accompanying loan payoff statements showing any and all Retained Liabilities of the Parties Company which such Retained Liabilities shall be paid and satisfied at or before Closing in accordance with Section 2.4 (the “Closing Statement”), and shall have delivered to Buyer the list of all current Accounts Receivables as contemplated by Section 4.11(c);
(Bk) a copyBuyer shall have received the resignations, certified by an officer effective as of Sellerthe Closing, of the resolutions each officer, director, employee, independent contractor, manager or member of the Board of Directors and the holders of Company other than those whom Buyer shall have specified in writing on or prior to Closing, Buyer shall have received from each such employee, independent contractor, officer, directors, manager or member a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale release of the Membership Interests Company and Buyer in the consummation of form substantially the transactions contemplated herein (sometimes referred to same as the release provided by the Seller in Section 5.12;
(l) Seller and Guarantor shall have executed and delivered to Buyer a non-competition, non-solicitation, and confidentiality agreement substantially in the form attached hereto as Schedule 6.1(l) (the “Contemplated TransactionsRestrictive Covenants Agreement”);
(Cm) Intentionally deleted.
(n) Seller shall have delivered to Buyer (i) a copy of the articles of organization of the Company certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Company, (ii) a certificate of existence of Seller good standing for the Company issued by the Delaware Secretary of State, dated not more than ten (10) days on or soon before the Closing DateDate by the Secretary of State (or comparable officer) of the jurisdiction of organization of the Company and of each jurisdiction in which the Company is qualified to do business, (iii) the minute books and all corporate records of the Company and (iv) all other Organizational Documents;
(Do) assignment agreements conveying Seller shall have delivered to Buyer a certificate of the Membership Interests secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, in a form reasonably acceptable certifying as to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) no amendments to the articles of such purchase price in cash to Parent Majority Shareholderorganization or other Organizational Documents of the Company since Effective Date; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor any resolutions of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase members of the Xxxxxxx SharesCompany relating to this Agreement and the Contemplated Transactions;
(p) Buyer shall have employed Xxxxx Xxxxxx;
(q) Buyer shall employed Xxxxxx Xxxxxx;
(r) Intentionally Deleted
(s) all actions to be taken by Seller in connection with Contemplated Transactions and all certificates, opinions, instruments, and other documents required to effect the Xxxxxxx Shares will Contemplated Transaction shall be immediately cancelledreasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate purchase the transactions Purchased Assets at Closing is further subject to be performed the fulfillment (or the waiver in a writing signed by it in connection with Buyer, to the extent permissible under applicable Law) at or prior to the Closing is subject to satisfaction of the following conditions:
(1a) The (i) the representations and warranties of Seller set forth contained in Section 3 3.2 (other than the second sentence of Section 3.2(a)) shall be true and correct as of the Agreement Date and as of the Closing Date as though made on and as of such date (except to the extent such representations and warranties speak as of an earlier date, in which case, such representations and warranties shall be true and correct in all material respects at as of such earlier date) in all respects except for de minimis inaccuracies and (ii) each of the representations and warranties contained herein (other than those listed in clause (i)) shall be true and correct as of the Agreement Date and as of the Closing DateDate as though made on and as of such date (except to the extent such representations and warranties speak as of an earlier date, in which case, such representations and warranties shall be true and correct in all respects as of such earlier date), interpreted without giving effect to any Material Adverse Effect or materiality qualifications or exceptions contained therein, except where all failures of such representations and warranties to be true and correct, in the aggregate, do not have, or would not reasonably be expected to have, a Material Adverse Effect;
(2b) Seller Sellers shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(3) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated with all covenants required by this Agreement to be rescinded following consummationperformed or complied with by them prior to the Closing (which, for the avoidance of doubt, shall not include Section 5.13 or (C) affect adversely the right of Buyer transactions referred to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effectSection 5.8(d));
(4c) On or before each Seller shall have delivered to Buyer a certificate, dated the Closing DateDate and signed by a duly authorized executive officer (in such officer’s capacity as such and not individually) of such Seller, Seller will deliver certifying to Buyer the following documents effect that the conditions set forth in Section 6.3(a) and instruments (the “Sellers Closing Documents”), each of which will Section 6.3(b) have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”)satisfied;
(Bd) a copySellers shall be prepared to deliver, certified by an officer of Selleror cause to be delivered, to Buyer all of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”);
(C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as items set forth hereinin Section 2.8; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closingprovided, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payablehowever, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00provision of the certifications referenced in Section 2.8(e) of such purchase price in cash shall not be a condition to Parent Majority Shareholder; Closing and (ii) the sole remedy for failure to provide such certifications shall be that Buyer shall be entitled to withhold any amount required to be withheld pursuant to applicable Law;
(e) the Sale Order shall have been entered, is not subject to any stay, is in effect and has become a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.Final Order; and
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligation of Buyer to Close. The obligation of Buyer to purchase the Assets and otherwise to consummate the transactions that are to be performed by it in connection with consummated at the Closing is subject to satisfaction the satisfaction, on or before the Closing Date, of the following conditions:conditions (any of which may be waived by Buyer in whole or in part):
6.1. Buyer has completed its due diligence review and has determined in its reasonable and good faith judgment to complete the transaction.
6.2. There shall have occurred no material adverse change to the Business since the date of this Agreement (1whether or not covered by insurance) , in each case taken as a whole, except for changes contemplated by this Agreement or by any of the contracts and changes otherwise occurring in connection with the transactions contemplated hereby.
6.3. All required consents, including the consent of each of its stockholders in the form of Exhibit "A" hereto, but excepting customer novation or consent agreements, shall have been duly obtained or obviated, except where (i) the failure to obtain any such required consents would not reasonably be expected to subject Buyer to any material penalty or loss, including loss of partial revenue, or (ii) such required consent relates to an assigned contract or a related assumed liability, as to which the parties will proceed pursuant to Article VIII.
6.4. The representations and warranties of Seller set forth in Section 3 Article III shall be true and correct in all material respects at on the Closing Date as though such representations and warranties were made as of such date.
6.5. Seller shall have complied with and performed, in all material respects, all obligations required by this Agreement to be complied with or performed by Seller on or before the Closing Date.
6.6. Seller shall have delivered to Buyer a certificate, dated as of the Closing Date;, to the effect that the conditions set forth in Paragraphs 6.3 and 6.4 have been satisfied.
(2) Seller 6.7. Buyer shall have performed and complied entered into an Employment Agreement with all of its covenants hereunder in all material respects through the Closing;
(3) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (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 Buyer to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4) On or before the Closing Date, Seller will deliver to Buyer the following documents and instruments (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”);
(B) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”);
(C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to BuyerXxxxxxxx Xxxxxxxx, in a conformity with the form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller agreement annexed hereto as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the ClosingExhibit "B".
(5) At Closing, Seller shall:6.8. Seller's accounts receivable shall exceed its accounts payable and bank debt by at least $800,000.
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 6.9. Xxxxxxxx Xxxxxxxx shall have entered into an Indemnification Agreement in the form set forth in Schedule 2.4(a)(5)(B) attached annexed hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledas Exhibit "C".
Appears in 1 contract
Samples: Asset Purchase Agreement (Herley Industries Inc /New)
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to purchase of the Stock as provided herein shall be performed by it in connection with the Closing is subject to satisfaction fulfillment at or prior to the Closing, or written waiver by Buyer, of each of the following conditions:
(1a) The representations and warranties of Seller set forth contained in Section 3 this Agreement shall be true and correct in all material respects at on the date hereof and as of the Closing Date as though made as of the Closing Date;, except for changes (i) contemplated by this Agreement; (ii) approved by Buyer; or (iii) set forth in the update to the Disclosure Schedule delivered by Seller at Closing, that, in the aggregate do not have a negative financial effect on MSCTC, Xxxxx or MLD greater than Five Hundred Fifty Thousand Dollars ($550,000.00) provided that any individual changes described in clause (iii) of this Section 3.2(a) that would qualify as "Indemnified Claims" if they occurred after the Closing may be applied in the Basket Amount or may be presented as an "Indemnified Claim" under the provisions of Article IX hereof.
(2b) Seller shall have duly performed and or complied with all of its covenants hereunder in all material respects through the Closing;obligations to be performed or complied with by it under the terms of this Agreement.
(3c) No actionSeller shall have delivered to Buyer (i) a certificate certifying to the fulfillment of the conditions set forth in paragraphs 3.2(a) and (b), suitand (ii) a copy of certified resolutions of its Board of Directors authorizing the sale of the Stock pursuant to this Agreement, or proceeding both of which shall be pending or in a form reasonably satisfactory to Buyer.
(d) Buyer shall have received an opinion from counsel to Seller’s knowledge, threatened before dated as of the Closing Date, substantially in the form attached hereto as Exhibit 3.2(d). In rendering such opinion, counsel may rely to the extent it deems appropriate upon certificates of officers of Seller and of public officials as to factual matters and upon opinions of other counsel delivered together with such opinion.
(e) All government consents and licenses, permits, authorizations, approvals or, filings with and notifications to any court or quasi-judicial or administrative agency of any federalUnited States, state, local, local or foreign jurisdiction other governmental regulatory body required to be made or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, obtained or charge would (A) prevent made in connection with the 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, shall have been made or (C) affect adversely the right of Buyer to own the Membership Interests or for such companies to operate their respective businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);obtained.
(4f) On Buyer shall receive from Seller at or before prior to Closing, Seller's Closing Deliveries (as defined in section 3.4, below).
(g) The directors and officers of MLD and Xxxxx shall have resigned their offices effective as of the Closing Date, Seller will deliver to Buyer the following documents and instruments (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized:
(A) a closing statement approved by the Parties (the “Closing Statement”);
(B) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”);
(C) a certificate of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.
Appears in 1 contract
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate effect the transactions to be performed by it in connection with closing of the Closing Transactions is subject to the satisfaction at or before Closing of all of the following conditions, any one or more of which may be waived by Buyer, in Buyer’s sole discretion:
(1a) The representations (i) Each representation and warranties warranty of Seller set forth Sellers in Article 3 and Section 3 shall 4.2 will have been and will be true and correct in all respects; (ii) each representation and warranty of Sellers in Article 4 (other than Section 4.2) that contains a qualification to the representation or warranty by use of the word “material,” “materially” or other variations of the root word “material” or by a reference regarding the occurrence or non-occurrence or possible occurrence or non-occurrence of a Material Adverse Effect or a “materially adverse effect” (a “Materiality Qualifier”) will have been and will be true and correct in all respects; and (iii) each representation and warranty of Sellers in Article 4 (other than Section 4.2) that does not contain a Materiality Qualifier will have been and will be true and correct in all material respects at respects, in each case both as of the date of this Agreement and as of the Closing Date;Date as though made on and as of the Closing Date (or, in each case, if any such representation and warranty is expressly stated to have been made as of a specific date, then, for such representation and warranty, as of such specific date).
(2b) Seller shall Sellers will have performed and complied with all of its covenants hereunder with, in all material respects through the Closing;
(3) No actionrespects, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated all covenants and agreements required by this Agreement to be rescinded following consummation, or (C) affect adversely the right of Buyer to own the Membership Interests or for such companies to operate their respective businesses (performed and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4) On complied with by Sellers on or before the Closing Date, Seller will deliver to Buyer the following documents and instruments (the “Sellers Closing Documents”), each of which will have been duly executed and, where appropriate, acknowledged or notarized:.
(Ac) a closing statement approved by Since the Parties (the “Closing Statement”);
(B) a copy, certified by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery date of this Agreement, there will not have been any Material Adverse Effect on any of the Company or its assets, Liabilities, business, financial condition, operations or results of operations.
(d) The Seller Representative will have delivered to Buyer a certificate duly executed by the Seller Representative, dated the Closing Date and executed by Seller Representative certifying the items in Sections 7.1(a), 7.1(b) and 7.1(c).
(e) The Seller Representative will have delivered (or caused to be delivered) to Buyer each of the other items contemplated to be so delivered by this Agreement, including each item listed in Section 2.2.
(f) No Governmental Entity of competent jurisdiction will have instituted any Action to restrain, prohibit or otherwise challenge the legality or validity of the Transactions that has not been dismissed or otherwise resolved in a manner that does not materially and adversely affect the Transactions and no injunction, Order or decree of any Governmental Entity will be in effect that restrains or prohibits the purchase or sale of the Membership Interests and Units or the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated other Transactions”);.
(Cg) a certificate of existence of Seller issued by The Employment Agreements will be in full force and effect, and neither Axxxxxx nor Guarantor shall have indicated an intention to terminate their employment with the Delaware Secretary of State, dated not more than ten (10) days before Company after the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5h) At Closing, Seller shall:
(AThe matters on Exhibit 7.1(h) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 in the form set forth in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelledhave been complied with.
Appears in 1 contract
Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties of Seller Sellers set forth in Section Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Each Seller shall have executed and delivered to Buyer a certificate dated as of the Closing Date that all such representations and warranties made by them are true and correct in all respects as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be in the same condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;
(2b) Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(3c) The Company and/or Sellers shall have procured all of the third-party consents specified in Schedule 3.1(c) and 4.3(b) and 4.16(v);
(d) No action, suit, or proceeding shall be pending or to Seller’s knowledge, threatened 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely the right of Buyer to own the Membership Interests and to control the Company, or for such companies (iv) affect adversely the right of the Company to own their Assets, including the Properties, and to operate their respective businesses Business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) There has not been made or threatened by any Person a claim asserting that such Person (i) is the holder of record or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests or other interest of the Company, or any other voting, equity or ownership interest, in or to the Company, (ii) is entitled to all or any portion of the Purchase Price payable for the Membership Interests as contemplated by this Agreement or (iii) is entitled to acquire any of the Assets, including the Properties, of the Company;
(f) The Company shall have received, acquired and obtained the all nonappealable and unrestricted Governmental Authorizations, Consents, Permits, Approvals, licenses, and other permits and approvals, and all pending applications therefor or renewals thereof, required or necessary for the ownership, construction, development and operation of Business on the Properties by the Company and Buyer, and all permits issued by the State of South Carolina, and Greenville City/County, South Carolina, for the ownership, operation, development and construction of the Business on the Properties, such Consents, licenses, Governmental Authorizations, permits and approvals to be in accordance with all Legal Requirements and satisfactory to Buyer in its sole discretion, with respect to operating conditions, and any other restrictions or requirements;
(g) Sellers shall have caused the Company to terminate, without Liability to such Company or Buyer, all Excluded Contracts, or assign all Excluded Contracts to Sellers or any third party; and
(h) On or before the Closing DateClosing, Seller will deliver Sellers shall file for and obtain in the name of the applicable Company all the necessary Governmental Authorizations from any Governmental Body (collectively the “Approvals”) having jurisdiction over the Properties, or the Business, in order for the Permits to be issued to the Company. Sellers covenant to use good faith and due diligence to actively pursue the Approvals. Sellers shall execute any additional agent authorization documentation and any other document, instrument or certificate specifically required by any Governmental Body to permit the Company to obtain the Permits and Approvals;
(i) Sellers shall have delivered to Buyer a certificate to the following documents and instruments (the “Sellers Closing Documents”), effect that each of which will have been duly executed and, where appropriate, acknowledged or notarized:the conditions specified above in Section 6.1(a)-(h) is satisfied in all respects;
(Aj) Sellers shall have delivered to Buyer a closing statement approved by Closing Statement and accompanying loan payoff statements showing any and all Retained Liabilities of the Parties Company which such Retained Liabilities shall be paid and satisfied at or before Closing in accordance with Section 2.4 (the “Closing Statement”);
(B) a copy, certified and shall have delivered to Buyer the list of all current Accounts Receivables as contemplated by an officer of Seller, of the resolutions of the Board of Directors and the holders of a majority of its issued and outstanding capital stock authorizing and approving the execution and delivery of this Agreement, the sale of the Membership Interests and the consummation of the transactions contemplated herein (sometimes referred to as the “Contemplated Transactions”Section 4.11(c);
(Ck) a certificate Buyer shall have received the resignations, effective as of existence of Seller issued by the Delaware Secretary of State, dated not more than ten (10) days before the Closing Date;
(D) assignment agreements conveying the Membership Interests to Buyer, in a form reasonably acceptable to Buyer, duly executed by Seller;
(E) a reaffirmation of all representations and warranties of Seller as set forth herein; and
(F) such other documents as Seller may reasonably request for the purposes of properly documenting and giving effect to the Contemplated Transactions to occur at the Closing.
(5) At Closing, Seller shall:
(A) Pay to Parent Majority Shareholder Seventy Thousand and no/100ths Dollars ($70,000.00) of each officer, director, employee, independent contractor, manager or member of the Company other than those whom Buyer shall have specified in satisfaction of all of Parent’s shareholder loans and all of Parent’s accounts payable, writing on or such lesser amount that is required to fully satisfy such obligations as mutually agreed upon by the Parties prior to Closing;
(B) Purchase Two Hundred Thirty Thousand , Buyer shall have received from each such employee, independent contractor, officer, directors, manager or member a release of the Company and no/100ths (230,000) shares of common stock of Parent currently owned by Parent Majority Shareholder (the “Xxxxxxx Shares”) for a purchase price of Two Hundred Thirty Thousand and no/100ths Dollars ($230,000.00), by delivering at Closing, (i) Eighty Thousand and no/100ths Dollars ($80,000.00) of such purchase price in cash to Parent Majority Shareholder; and (ii) a purchase money convertible promissory note due on or before December 31, 2014 Buyer in the form set forth substantially the same as the release provided by the Sellers in Schedule 2.4(a)(5)(B) attached hereto and made a part hereof, in favor of the Parent Majority Shareholder in the amount of One Hundred Fifty Thousand and no/100ths Dollars ($150,000.00). Upon Seller’s purchase of the Xxxxxxx Shares, the Xxxxxxx Shares will be immediately cancelled.Section 5.12;
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
