Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions: (a) the representations and warranties set forth in Article 3 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made); (b) Seller shall have performed and complied with all of its covenants under this Agreement in all material respects through the Closing; (c) Seller shall have procured all of the third-party consents specified in Section 5.2; (d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect); (e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects; (f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been 68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3; (g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing; (i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business; (j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement; (k) Seller shall have executed and delivered to Buyer the Assignments; (l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69 (m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the (n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.
Appears in 2 contracts
Conditions to Obligation of Buyer. The obligation of Buyer to --------------------------------- consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller the Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller the Sellers shall have procured all of the third-third party consents specified in Section 5.25(b) above;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) business of this Section 6.2(d) will be in effect)the Sellers relating to the Patio Heaters;
(ev) Seller the Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i)-(iv) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nvi) all actions to be taken by Seller the Sellers in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller shall have procured all of the third-party consents Required Consents specified in Section 5.2Schedule 3(c) at or prior to the Closing;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller proceeding is pending or, to Seller’s Knowledge, threatened before any court Governmental Body or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which wherein an unfavorable judgment, order, decree, ruling, or charge would Order would:
(iA) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or the other Transaction Documents,
(iiB) cause any of the transactions contemplated by this Agreement or the other Transaction Documents to be rescinded following consummation, or consummation or
(iiiC) affect adversely the Acquired Assets or their value or the right of the Buyer to own the Acquired Assets and to operate the Acquired Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will such Order shall be in effect);
(ev) all material registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers required in respect of the transactions contemplated hereby shall have been filed, made or obtained, and all waiting periods applicable under the HSR Act shall have expired or been terminated;
(vi) Seller shall have delivered to Buyer a certificate signed by a Vice President of Seller, without personal liability, to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.satisfied;
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties of Sellers set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller Sellers and their Subsidiaries shall have procured all of the third-third party consents specified in Section 5.25(b) above;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would (iA) prevent the consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and to operate or perform its obligations under the Business Assumed Liabilities (and no such injunction, judgment, order, decree, ruling, ruling or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);; and
(ev) Seller Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i)-(iv) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is contemplated hereby are subject to satisfaction (or waiver by Buyer) at the Closing of the following conditions:
(a) Each of the representations and warranties of the Members contained in this Agreement shall be true in all material respects as of the date hereof and as of the Closing as though made at and as of the Closing; provided the representations set forth in Article 3 Section 3.5 (Capitalization; Acquired Subsidiaries) and Section 4.1 (Ownership) shall be true and correct in all material but de minimis respects (except for representations as of the date hereof and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) as of the Closing as though made at and as of the Closing Date (as though then made)Closing;
(b) Seller Xxxxxxxx and the Members shall have performed and complied with all of its covenants under this Agreement in all material respects with all of their respective covenants and other agreements hereunder through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller Xxxxxxxx shall have delivered to Buyer a certificate signed by an officer of Xxxxxxxx on behalf of Xxxxxxxx and the Members, in form and substance reasonably satisfactory to Buyer, to the effect that each of the conditions specified above set forth in Section 6.1(a)-(d6.1(a), Section 6.1(b) is and Section 6.1(g) have been satisfied in all respects;
(fd) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors Each of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in deliveries contemplated by Section 3.3 and Section 4.32.6(a) shall have been made;
(ge) Xxxxx No Governmental Authority shall have received from counsel to Seller an opinion in form enacted, issued, or entered any Governmental Order and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfiedthere is no Law, in its sole discretioneither case, after visits with which has the customers effect of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and making the transactions contemplated by this Agreement at illegal, or otherwise prohibits or materially restrains (including post-Closing rescission) the consummation of such transactions;
(f) No Material Adverse Effect concerning any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69Companies shall have occurred;
(mg) The filings of Buyer and Xxxxxxxx pursuant to the HSR Act, if any, shall have obtained non-compete agreements substantially in been made and the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain applicable waiting period and any exemptions thereof shall have expired or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and thebeen terminated; and
(nh) all actions to be taken by Seller This Agreement shall not have been terminated in connection accordance with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 ClosingArticle IX.
Appears in 1 contract
Samples: Plan of Merger and Equity Purchase Agreement (Agrify Corp)
Conditions to Obligation of Buyer. The obligation of Buyer to --------------------------------- consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:;
(a) the representations and warranties set forth in Article 3 Section 2 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller shall have performed and complied with provided evidence reasonably satisfactory to Buyer's counsel that prior to the Closing Date, Seller has exercised all of its covenants under this Agreement in all material respects through the Closingoutstanding options of Target and converted such options into shares of capital stock of Target;
(c) the exercise price to be paid by Seller shall have procured all in respect of the third-party consents specified in Section 5.2options has been paid to the Target and all options held by Seller have been converted into shares of common stock of the Target;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller proceeding is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiiC) affect adversely the right of the Buyer to own acquire the Acquired Assets and to operate the Business Securities (and no such injunction, judgment, order, decree, ruling, ruling or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller shall have delivered to Buyer a certificate signed by Seller to the effect that each of the conditions specified above in Section 6.1(a)-(d4.1(a) through (c) is satisfied true in all respects;
(f) Buyer shall have received, from or on behalf of Seller or other applicable party, delivery of all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced Closing Documents listed in Section 3.3 and Section 4.34.3 below;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as the closing of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this the Purchase Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69shall be occurring; and
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nh) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and by this Agreement, the other Transaction Documents and all certificates, opinions, instruments, instruments and other documents required to effect the transactions contemplated by this Agreement hereby and thereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 4.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller Sellers shall have procured all such of the third-third party consents specified in Section 5.26.2 above under which the consequences of a failure to obtain consent could have a material adverse effect on the Value of the Assets;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable judgment, order, decree, rulingstipulation, injunction or charge would (ia) prevent consummation of any of the transactions contemplated by this Purchase Agreement, (iib) cause any of the transactions contemplated by this Purchase Agreement to be rescinded following consummation, or (iiic) affect materially and adversely the right of the Buyer to own own, operate or control the Acquired Assets and to operate or, indirectly through ownership of the Business Shares, the Xxxxxx Assets (and no such judgment, order, decree, rulingstipulation, injunction or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller the Agent shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(dSections 7.1(i)-(iv) is satisfied in all material respects;
(fvi) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3been terminated;
(gvii) Xxxxx the Escrow Holder shall be prepared to deliver to Buyer a standard owner's policy of title insurance equivalent to a CLTA policy of title insurance for each parcel of the Real Property insuring that, promptly following the Closing and the recordation of the Deeds as contemplated by Section 3.3(v) above, Buyer (or Xxxxxx with respect to Real Property owned by Xxxxxx) shall be vested with good and marketable title thereto (with exceptions to such policies which are either standard or reasonable for real property such as the Real Property at issue);
(viii) Buyer shall have received from counsel to Seller Sellers an opinion in form and substance as set forth in Exhibit D attached reasonably satisfactory to this AgreementBuyer, addressed to Buyer and dated as of the Closing Date;
(hix) Any investigations conducted by Buyer with respect to the Real Property shall not have revealed circumstances which are unknown to Buyer as of the Effective Date and which could effect a material adverse change in the Value of the Assets (as compared to the Value of the Assets on the Effective Date, assuming the absence of such circumstances); PROVIDED, HOWEVER, that if Buyer shall not have delivered notice to Agent on or prior to August 31, 1995 regarding a failure of the conditions to Closing contemplated by this Section 7.1(ix), then such conditions shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closingdeemed satisfied or waived;
(ix) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller Except as set forth in the operation Disclosure Schedule as of the Business;Effective Date, there shall have been no material adverse change in the Value of the Assets as compared to the Effective Date; and
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nxi) all actions to be taken by Seller Sellers in connection with the consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, instruments and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7.1 if it Buyer executes and delivers to Agent a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) (i) the representations and warranties set forth in Article 3 above, shall be true and correct in all material respects respects, and (except for representations ii) all agreements and warranties limited covenants contained in this Agreement shall have been performed or complied with by material adverse effect or material adverse changeATR, which shall be true and correct in all respects) each case, at and as of the Closing Date (as though then made)Date;
(b) Seller shall have performed and complied with all of its covenants under this Agreement in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d6.01(a) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(kc) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than xxxx of sale and assignment and assumption agreement required under Section 2.06, Seller shall have obtained and delivered together with any other instrument of transfer necessary to convey to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting all of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meetingAcquired Assets, to execute written consents in favor of this approval;69
(m) Buyer which instruments shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will be reasonably satisfactory in form and substance to Buyer;
(d) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e) Buyer shall have delivered to Seller and Stockholder either (a) its Bylaws, or (b) its Board of Director Minutes, authorizing the transaction contemplated by this Agreement; and
(f) Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of all Security Interests. Buyer may waive any condition specified in this Section 6.1 6.01 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (SilverSun Technologies, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed contemplated by it at and in connection with the Closing this Agreement is subject to satisfaction satisfaction, at or prior to the Closing, of each of the following conditionsconditions unless Buyer shall have waived such satisfaction pursuant to Section 8.4:
(a) Each of the representations and warranties of Sellers set forth in Article 3 this Agreement shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Closing;
(b) Seller On or prior to the Closing Date, Sellers and the Company shall have performed and complied with all of its the covenants under set forth in this Agreement in all material respects through to be performed or complied with by them or it at or prior to the ClosingClosing Date;
(c) Seller No proceeding, regulation or legislation shall have procured all been instituted, threatened in writing or proposed before, nor any court order issued by, any governmental authority to enjoin, restrain, prohibit or obtain substantial damages (i) in respect of, or which is related to, or arises out of, this Agreement or the consummation of the third-party consents specified transactions contemplated hereby, or (ii) which, in Section 5.2the reasonable judgment of Buyer, could have an adverse effect on the Company or its assets;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller The Company shall have delivered to Buyer a certificate to issued by the effect that each Secretary of State of Kansas, evidencing the corporate good standing of the conditions specified above Company in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated Kansas as of a date not more than one (1) business day prior to the Closing Date;
(he) The Debentures shall have been converted into shares of Common Stock representing 45% of the issued and outstanding shares of Common Stock and the Debentures and agreements related thereto shall have been terminated, as reasonably requested by counsel to Buyer; and
(f) The Board of Directors of Buyer shall be satisfied, in its sole discretion, after visits with have approved the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing execution and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval delivery of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 Closinghereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amerus Life Holdings Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed contemplated by it at and in connection with the Closing this Agreement is subject to satisfaction satisfaction, at or prior to the Closing of each of the following conditionsconditions unless Buyer shall have waived such satisfaction pursuant to Section 8.4:
(a) Each of the representations and warranties of Seller set forth in Article 3 this Agreement shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Closing;
(b) On or prior to the Closing Date, Seller and the Company shall have performed and complied with all of its the covenants under set forth in this Agreement in all material respects through to be performed or complied with by them or it at or prior to the ClosingClosing Date;
(c) Seller No Proceeding or regulation or legislation shall have procured all been instituted, threatened in writing or proposed before, nor any Court Order issued by, any Governmental Authority to enjoin, restrain, prohibit or obtain substantial damages (i) in respect of, or which is related to, or arises out of, this Agreement or the consummation of the third-party consents specified Purchase, or (ii) which, in Section 5.2the reasonable judgment of Buyer, could have a material adverse effect on the Company, its business or the assets of the Company;
(d) no actionThe Company shall have delivered to Buyer a certificate issued by the Secretary of State of Georgia, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, evidencing the corporate good standing of the Company in Georgia as of a date not more than five (5) business days prior to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result the Closing Date;
(e) The Board of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent Directors of Buyer shall have approved the execution and delivery of this Agreement and the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);hereby; and
(ef) Seller shall have delivered to Buyer a certificate to the effect that each duplicate counterparts of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (Distribution and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Services Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for 6.1(f) hereto duly executed by The Bankers Bank, a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 ClosingGeorgia banking corporation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amerus Life Holdings Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) 8.1.1 the representations and warranties of Seller set forth in Article 3 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller shall have performed and complied with all of its covenants under this Agreement in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) 8.1.2 no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or foreign jurisdiction, or before any arbitrator as a result of which arbitrator, wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would (ia) prevent consummation of any of the transactions contemplated by this Agreement, (iib) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiic) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business Shares (and no such injunction, judgment, order, decree, ruling, ruling or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) 8.1.3 Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) Sections 8.1.1 and 8.1.2 is satisfied in all respects, which certificate shall also state, as of a date within five days of the Closing Date, the number of issued and outstanding shares of Common Stock and the number of shares of Common Stock reserved for issuance;
(f) all applicable waiting periods (8.1.4 Buyer shall have submitted a written notice with regard to the transactions contemplated by this Agreement to the MOF under the Foreign Exchange and any Trade Control Law of Japan, as amended, and the requisite waiting period extensions(if any) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx thereunder shall have received from counsel to lapsed; and
8.1.5 Buyer and Seller an opinion shall have entered into the Registration Rights Agreement in form and substance as set forth in Exhibit D A attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will be reasonably satisfactory in form and substance to Buyerhereto. Buyer may waive any condition specified in this Section 6.1 8.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Aksys LTD)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the The representations and warranties set forth in Article 3 Section and Section above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)and there shall not have occurred any Material Adverse Effect;
(bii) Seller The Shareholders and the Company shall have performed and complied with all of its his covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller The Company shall have procured all of the third-third party consents specified in Section 5.2above;
(div) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction, or before any arbitrator as a result of which arbitrator, wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer Company to own the Acquired Assets its assets and to operate the Business its businesses (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller The Shareholders shall have delivered to Buyer a certificate certificate, to the effect that each of the conditions specified above in Section 6.1(a)-(d) through is satisfied in all respects;
(fvi) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act The Parties shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 and Section 4.3above;
(gvii) Xxxxx Buyer shall have received from counsel to Seller the Shareholders an opinion substantially in form and substance as set forth in Exhibit D attached to this Agreementhereto, addressed to Buyer and dated as of the Closing Date;
(hviii) Buyer Oldham shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closinghave entered into an Employment Agreement;
(iix) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent The Shareholders shall have entered into the Escrow AgreementNoncompetition Agreements;
(kx) Seller The Shareholders shall have executed and delivered to Buyer entered into the AssignmentsLeases;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to --------------------------------- consummate the transactions to be performed by it at and in connection with the Closing is subject to the satisfaction of the following further conditions, unless waived by Buyer:
(ai) the Company and each Seller shall have performed in all material respects all of his or its obligations hereunder required to be performed on or prior to the Closing Date and (ii) the representations and warranties set forth of the Company and each Seller contained in Article 3 this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by the Company or a Seller pursuant hereto shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all 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 and (as though then made);iii) Buyer shall have received a certificate signed by the President of the Company.
(b) Seller No court, arbitrator or governmental body, agency or official shall have performed issued any order, and complied with all there shall not be any statute, rule or regulation, restraining the effective operation by Buyer of its covenants under this Agreement in all material respects through the Closing;business of the Company after the Closing Date.
(c) Seller Buyer shall have procured all received an opinion of Company Counsel, dated the third-party consents Closing Date, to the effect specified in Section 5.2;Sections 3.01 through 3.05 and 3.11of the Management Sellers Stock Purchase Agreement and with respect to such other matters as Buyer may reasonably request.
(d) no actionExecution and delivery by 100% of the parties thereto of each of the Ancillary Agreements.
(e) Execution and delivery by each employee of the Company of an offer letter, suit, proceeding, hearing, investigation, charge, complaint, claimassignment of inventions and non-competition agreement in the form specified by Buyer.
(f) Execution and delivery of this Agreement by 100% of the parties hereto.
(g) Sellers, or demand against Seller is pending orSellers' Agent, shall have delivered to Seller’s KnowledgeBuyer certificates for the Shares duly endorsed or accompanied by stock powers duly endorsed in blank, threatened before with any court or quasi-judicial or administrative Governmental Agency or before any arbitrator required transfer stamps affixed thereto.
(h) Buyer shall have delivered to Sellers Agent checks representing in the aggregate $885,748.54, such checks to be distributed as a result of which an unfavorable judgment, order, decree, ruling, or charge would set forth on Schedule -------- 2.01B. -----
(i) prevent consummation The Company and Sellers shall have delivered to Buyer revised schedules to this Agreement updating the information shown thereon to the Closing Date.
(j) Company shall have delivered an Unaudited Balance Sheet as of the Closing Date.
(k) The Company shall have received all consents, authorizations or approvals referred to in Section 3.03 to the Management Sellers Stock Purchase Agreement, in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(l) Company shall have either (i) delivered to Buyer a properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Buyer or (ii) caused each of the Sellers to have executed and delivered to Buyer certificates of non-foreign status satisfying the requirements of Treasury Regulations Section 1.1445-2(b). Company shall have delivered to Buyer a clearance certificate or similar document(s) which may be required by any Tax authority to relieve Buyer of any of obligation to withhold Taxes in connection with the transactions contemplated by this Agreement. Seller shall have paid all sales, (ii) cause any of use, transfer, stamp, documentary and other similar Taxes and recording and filing fees incurred in connection with the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69.
(m) Buyer shall have obtained non-compete agreements substantially received all other closing documents specified in the form Section 2.02 of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificatesother closing documents that it may reasonably request, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will be reasonably satisfactory all in form and substance reasonably satisfactory 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
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction (or waiver in accordance with this Section 7.1) of each of the following conditions:conditions precedent set forth below in this Section 7.1.
(ai) the The representations and warranties set forth in Section 4.1(a) (Title; No Other Agreement to Sell Shares or Options), Section 4.1(b) (Authority, Validity and Effect), Section 4.1(d) (Brokers’ Fees), Section 4.2(a) (Authority, Validity and Effect), Section 4.2(c) (Capitalization), Section 4.2(d) (Taxes) and subsections (ii), (iii) and (vii) of Section 4.2(b) (Financial Condition) shall be true and correct in all respects and (ii) all other representations and warranties set forth in Article 3 IV shall be true and correct in all respects (in the case of any representation or warranty containing any materiality qualification) or true and correct in all material respects (except for representations in the case of any representation or warranty without any materiality qualification), in each case, at and warranties limited by material adverse effect or material adverse change, which shall be true as of the date hereof and correct in all respects) at and as of the Closing Date Date, with the same force and effect as if made on and as of the Closing Date, except for representations and warranties that speak as of a specific date or time (which need be true and correct only as though then madeof such date or time);.
(b) Seller The Sellers shall have performed and complied with all of its covenants under this Agreement in all material respects through with all covenants, agreements or obligations required to be performed or complied with by Sellers prior to the Closing;.
(c) Seller There shall have procured all not be any Order in effect preventing the consummation of the third-party consents specified in Section 5.2;Contemplated Transactions, nor any Action brought by any Governmental Authority that is pending before any Governmental Authority that seeks to prevent or prohibit the consummation of the Contemplated Transactions.
(d) no actionSince December 31, suit2011, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before there shall not have occurred any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);Material Adverse Effect.
(e) Seller The Company and Sellers shall have delivered to Buyer a certificate to the effect that each all of the conditions specified above items identified in Section 6.1(a)-(d) is satisfied 3.2, and the Required Consents shall be in all respects;full force and effect.
(f) all applicable waiting periods (Such directors and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors officers of the seller in satisfaction of its fiduciary duties Company, as designated by Buyer to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals Sellers in advance of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
Closing (g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated but effective as of the Closing Date;
(h) Buyer shall be satisfiedClosing), in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than their resignations, Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will be reasonably satisfactory in form and substance reasonably satisfactory 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: Stock Purchase Agreement (Frequency Electronics Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the The representations and warranties set forth in Article 3 Section 3(a) and Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller The Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material Material respects through the Closing;
(ciii) Seller Target shall have procured all of the third-governmental or third party consents and approvals specified in Section 5.2;5(b) including any landlord consents related to any rental property.
(div) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative agency within the jurisdiction of any Governmental Agency or before any arbitrator as a result of which Authority wherein an unfavorable judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, operate, or control the Acquired Assets and to operate the Business Shares or Target (and no such judgment, order, decree, rulingstipulation, injunction, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller The Sellers shall have delivered to Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Section 6.1(a)-(d7(a)(i)-(iv) is satisfied in all respects;
(fvi) all applicable waiting periods (Buyer shall have received from the Key Employees executed employment agreements in the form and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known substance attached hereto as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3Exhibit B;
(gvii) Xxxxx Buyer shall have received from each Key Employee mutually agreed to by the Parties an executed non-competition agreement in the form and substance attached hereto as Exhibit C;
(viii) Buyer shall have received from counsel to Seller the Sellers an opinion in form and substance as with respect to the matters set forth in Exhibit D attached to this Agreementhereto, addressed to Buyer and dated as of the Closing Date;
(hix) Buyer shall have received the resignations, effective as of the Closing, of each director of Target designated by Buyer prior to the Closing;
(x) All officers and directors of Target and each Seller shall have repaid in full all debts or other obligations, if any, owed to Target;
(xi) No Material adverse change shall have occurred before the Closing in Target's business or its future business prospects;
(xii) All appropriate corporate and shareholder authorizations of Target shall have been obtained;
(xiii) Buyer shall be satisfiedsatisfied that at Closing all facilities of Target are under legal, valid and binding leases or subleases, each of which have received all approvals of governmental authorities;
(xiv) The Sellers shall have delivered to Buyer stock certificates evidencing all of the stock of Target in good delivery form and duly endorsed for transfer or accompanied by duly executed stock powers or other appropriate assignment documents;
(xv) The Sellers shall have caused and Target shall have cancelled any stock options, deferred bonus programs, and phantom equity plans outstanding as of the Closing Date, at no cost or liability to Buyer and/or Target. The payments made by the Sellers and due pursuant to the cancellation of such programs will vest and be payable to the recipients in accordance with terms and conditions mutually agreed upon by the Sellers and Buyer. In conjunction with the cancellation of such programs, all eligible employees shall have signed releases and cancellation agreements which include provisions that each employee will not, for a period of one (1) year from the Closing Date or one (1) year from the termination of his or her employment with Target whichever period is longer: (a) service or solicit any customers of Target and/or Buyer, or (b) solicit for employment any employee of Target;
(xvi) All liens and security interests securing debts of Target which have been paid in full prior to or at the Closing shall have been fully released of record to the reasonable satisfaction of Buyer and all Uniform Commercial Code financing statements or other filings of any kind whatsoever, covering or evidencing such debts, liens and/or security interests shall have been terminated;
(xvii) All obligations of Target which are not being retired or satisfied by the Sellers prior to or at the Closing, shall have been modified in such a manner that their covenants, repayment schedules, and other provisions will be upon terms reasonably satisfactory to Buyer;
(xviii) No unsatisfied liens for the failure to pay Taxes of any nature whatsoever shall exist against Target, or against or in any way affecting any of the Shares;
(xix) The Adjusted EBIT of Target for the twelve (12) month period ending June 30, 1998 shall be no less than $1,200,000;
(xx) All deferred taxes of Target and all other tax related issues of Target shall have been assumed and/or discharged by the Sellers to the extent the same have not been accrued for and reflected in the calculation of Net Working Capital as of the Closing Date;
(xxi) Buyer shall be satisfied in its sole discretion, after visits discretion with the customers results of Seller listed on Disclosure Schedule 3.12its legal, that the material relationships with those customers will survive the Closing financial and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;business due diligence investigations; and
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(mxxii) Buyer shall have obtained non-compete agreements substantially received a certificate of the Secretary of Target accompanied with Target's certified certificate of incorporation and bylaws and certificates of good standing in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It jurisdiction in which Target is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions required to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required qualified to effect the transactions contemplated by this Agreement will be reasonably satisfactory in form and substance to Buyerdo business. Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer and Parent to consummate the transactions to be performed by it at and in connection with the Closing closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller shall have procured all of the third-third party consents specified in Section 5.25.2 above, all of the title insurance commitments, policies, and riders specified in Section 5.8 above, the environmental reports specified in Section 5.9 above and the insurance specified in Section 5.13 above;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, operate, or control the Acquired Assets and to operate the Business (and no such judgment, order, decree, rulingstipulation, injunction, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller shall have delivered to Buyer a certificate (without qualification as to knowledge or materiality or otherwise) executed by the Chairman and Chief Executive Officer and dated the Closing Date to the effect that each of the conditions specified above in Section 6.1(a)-(d6.1(i)-(iv) is satisfied in all respects;
(fvi) Seller shall have delivered to Buyer a certificate of the Secretary of Seller, dated the Closing Date, certifying: (a) that attached thereto is a true and complete copy of the Bylaws of Seller as in effect on the date of such certification; (b) that attached thereto is a true and complete copy of all applicable waiting periods (resolutions adopted by the Board of Directors of Seller authorizing the transactions contemplated by this Agreement and any waiting period extensionsother actions necessary thereto; (c) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating that attached thereto is a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors true and complete copy of the seller Articles of Association as in satisfaction effect on the date of its fiduciary duties such certification; and (d) to the seller’s shareholders. terminated incumbency and Seller, and Xxxxx has received all other authorizations, consents and approvals signatures of the Governmental Agencies referenced in Section 3.3 and Section 4.3;officers of Seller executing the Seller Transaction Documents.
(gvii) Xxxxx Buyer shall have received from counsel to Seller an opinion in form and substance as with respect to the matters set forth in Exhibit D B attached to this Agreementhereto, addressed to Buyer and dated as of the Closing Date;
(hviii) Xxxxxx Xxxxxxxx shall have entered into a Non-Competition, Non-Solicitation Agreement with Buyer, in form of Exhibit C attached hereto;
(ix) Buyer shall be satisfied, in its sole discretion, reasonably satisfied that Xxxxxxx Xxxxxx shall be employed by Buyer after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(ix) Buyer, in its sole discretion, Buyer shall be satisfied with that the exercise of its due diligence investigation regarding compliance of products manufactured Vermont Escrow Amounts and any applicable transfer taxes or published by Seller in assessments applicable to the operation transfer of the BusinessReal Property shall have been properly reserved for or paid by the Seller out of the proceeds of the Cash Purchase Price;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nxi) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will 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.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cardiodynamics International Corp)
Conditions to Obligation of Buyer. The obligation of Buyer to --------------------------------- consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:;
(a) the representations and warranties set forth in Article Sections 2 and 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller Target shall have performed and complied with procured all of its covenants under this Agreement the third party consents specified in all material respects through Schedule 2.4 at or prior to the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller proceeding is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely Target or its value or the right of the Buyer to own acquire the Acquired Assets Individual Shares and to operate the Business business of Target, (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ed) Seller Target shall have delivered to Buyer a certificate signed by the Chief Executive Officer and the Chief Financial Officer of Target to the effect that each of the conditions specified above in Section 6.1(a)-(d5.1(a) through (c) is satisfied true in all respects;
(fe) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx Buyer shall have received from counsel to or on behalf of Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as or other applicable party delivery of all the Closing DateDocuments listed in Section 5.3 below;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nf) all actions to be taken by Target and Seller in connection with consummation of the transactions contemplated hereby and by this Agreement, the other Transaction Documents and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby and thereby will be reasonably satisfactory in form and substance to Buyer;
(g) No later than one business day prior to the Closing Date, Target shall have delivered to Buyer a balance sheet estimated as of the Closing Date (the "Closing Balance Sheet") and an estimated income statement for the period in calendar 1999 preceding the Closing Date (the "Closing Date Income Statement"), prepared in accordance with GAAP and which shall be satisfactory to PwC (and which balance sheet PwC shall determine is auditable), reflecting the forgiveness of certain intercompany receivables and accounts payable (the net amount of which shall not exceed $500,000) and the Closing Balance Sheet shall indicate that the amount of Target's working capital (defined as current assets less current liabilities (excluding any deferred revenue)) is equal to or greater than $(425,000); and
(h) All the actions to be taken as set forth in Exhibit C hereto shall have been completed. Buyer may waive any condition specified in this Section 6.1 5.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 3 2 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller the Company and Ernst shall have performed and complied with all of its or his covenants under this Agreement in all material respects hereunder through the Closing;
(c) Seller the Company shall have procured all of the third-third party consents specified required to consummate the transactions contemplated in Section 5.2this Agreement;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-quasi judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect)Purchased Interest;
(e) Seller since the Effective Date there shall have delivered to Buyer a certificate to been no Material Adverse Effect on the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respectsCompany;
(f) all applicable waiting periods the Company and Ernst shall have delivered or caused to be delivered to Buyer (and any waiting period extensionsor tendered subject only to Closing) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise beenfollowing documents:
68 A seller should consider negotiating (i) a carve-out—specifically known as a “fiduciary out”—here for actions taken by certificate representing the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3Purchased Interest;
(gii) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this AgreementOfficer’s Certificate of the Company, addressed to Buyer and dated as of the Closing Date, stating that (A) the conditions specified in Section 5.1(a)-(e) are satisfied in all respects and (B) the Noncompete Agreement and Pledge Agreement are in full force and effect and have not been altered, modified, amended, terminated or repudiated by any party thereto;
(iii) a Secretary’s Certificate from the Company certifying the names and signatures of the officers of the Company authorized to sign each of the Investment Documents to which the Company is a party;
(iv) certified copies of the resolutions duly adopted by the sole member of the Company authorizing the execution, deliver and performance of each of the Investment Documents to which it is a party, the issuance and sale of the Purchased Interest and the consummation of all other transactions contemplated by the Investment Documents;
(v) certified copies of the Company’s certificate of organization;
(vi) certificates of good standing, dated not more than ten (10) days prior to the Closing Date, of the Company issued by its jurisdiction of organization and from each jurisdiction in which the Company is qualified to do business;
(vii) a certificate from the trustee(s) of the Ernst Trust that its Units and Membership Interest are free and clear of all Liens;
(viii) copies of all third party and governmental consents, approvals and filings required in connection with the consummation of the transactions under the Investment Documents (including all blue sky law filings and waivers of all preemptive rights, rights of first refusal and all other similar rights);
(ix) fully executed employment agreements between the Company and each of the Other Members (the “Employment Agreements”) on terms satisfactory to Buyer;
(x) an executed opinion of Company’s counsel dated the Closing Date satisfactory to Buyer and its counsel;
(xi) a certificate reflecting the Ernst Trust’s ownership of its Units and Membership Interest in order to perfect the security interest granted by Section 7.2 and the Pledge Agreement, together with an assignment separate from the certificate executed in blank by the Ernst Trust;
(xii) an invoice dated as of the Closing Date from Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP reflecting all fees and expenses charged to the Company and/or Ernst in connection with the negotiation and documentation of the transactions contemplated by this Agreement;
(xiii) evidence satisfactory to Buyer that the Other Members have waived their rights to any consulting payments from the Company for April 2009; and
(xiv) such other documents related to the transactions contemplated by the Investment Documents as Buyer and its counsel may reasonably request;
(g) neither the consummation nor the performance of any of the transactions contemplated herein will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of or cause Buyer or any Affiliate of Buyer to suffer any Adverse Consequences under any applicable Law;
(h) Buyer shall be satisfied, satisfied in its sole discretion, after visits discretion with the customers result of Seller listed on Disclosure Schedule 3.12its due diligence review of the Company, that the material relationships with those customers will survive the Closing its Business, operations, prospects and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closingassets;
(i) Buyer’s board of directors shall have authorized the execution, in its sole discretion, shall be satisfied with the exercise delivery and performance of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation each of the Business;Investment Documents to which Buyer is a party and the consummation of all other transactions contemplated by the Investment Documents; and
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller the Company in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to BuyerBuyer in its sole discretion, and in full force and effect. Buyer may waive any condition specified in this Section 6.1 5.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Novastar Financial Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller shall have procured all of the third-third party consents specified in Section 5.25(b) above;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and Assets, to operate the Business former businesses of Seller, and to control Seller's Subsidiaries, or (D) affect adversely the business, assets, properties, operation (financial or otherwise), or prospects of Buyer with respect to its ownership of the Acquired Assets or operation of its business as a result of such acquisition (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) the board of directors of Buyer and the shareholders of Buyer have approved the transactions contemplated by this Agreement;
(vi) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d7(a)(i)-(iv) is satisfied in all respectsrespects and Seller shall deliver to Buyer each of the assignments and other documents required by Section 2(h);
(fvii) all applicable waiting periods (Seller and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act Buyer shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 3(c) and Section 4.34(c) above;
(gviii) Xxxxx Buyer, Seller and Escrow Agent shall have entered into an escrow agreement in the form of Exhibit H (the "Escrow Agreement");
(ix) Mike Xxxxxxxxx xxx Marixx Xxxxxxxxxxx xxxll have each entered into an employment, noncompetition and confidentiality agreement with Buyer in the form and substance set forth in Exhibit I (individually an "Employment Agreement, and collectively, the "Employment Agreements"). The combined annual compensation to be paid to such persons shall not exceed $135,000.00.
(x) Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D J attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;; and
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nxi) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will hereby shall be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:conditions (except to the extent waived by Buyer):
(a) (i) the representations and warranties set forth of Seller contained in Article 3 this Agreement (A) that are not qualified as to “materiality” shall be true and correct in all material respects as of the date of this Agreement and as of the Closing and (B) that are qualified as to “materiality” shall be true and correct as of the date of this Agreement and as of the Closing, except for to the extent such representations and warranties limited by material adverse effect or material adverse changeare made as of another date, in which case such representations and warranties shall be true and correct in all respects) at material respects or true and correct, as the case may be, as of such other date, and (ii) the covenants and agreements contained in this Agreement to be complied with by Seller on or before the Closing Date (as though then made)shall have been complied with in all material respects;
(b) Seller shall have performed and complied in all material respects with all of its covenants under this Agreement in all material respects hereunder through the Closing;
(c) Seller no Action shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, Transactions or (ii) cause any of the transactions contemplated by this Agreement Transactions to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business consummation (and no such injunction, judgment, order, decree, ruling, ruling or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ed) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d7.2(a)-(c) is satisfied in all material respects, with such certificate reflecting the condition in Section 7.2(c) being to Seller’s Knowledge;
(e) Seller and Buyer shall have mutually agreed to, and duly executed and delivered, each of the Ancillary Agreements; and
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act The Required Consents shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken been received by the board of directors of parties, each duly executed by the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;applicable counterparties thereto.
(g) Xxxxx all deliveries required by Section 2.7(a) shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 Closingbeen made.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ddi Corp)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:conditions unless, in the case of the conditions set forth in paragraphs (i), (ii), (iii), (v) or (ix) of this Section 7.1, the failure of one or more of such conditions does not result, in the aggregate, in an adverse effect on, or an adverse change in, the Value of the Acquired Assets in an amount in excess of One Million dollars ($1,000,000):
(ai) the representations and warranties set forth in Article 3 Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Fibreboard shall have performed and complied with all of its covenants under this Agreement in all material respects hereunder through the Closing;
(ciii) Seller all consents and approvals of third parties including the Forest Service and all other governmental agencies required on or before the Closing in connection with the change in ownership of the Acquired Shares from Fibreboard to Buyer and listed on Appendix 5 shall have procured all been obtained and such consents and approvals shall not impose conditions that make it impracticable for the Acquired Corporations to continue to conduct the Businesses or result in an adverse effect on the Value of the third-party consents specified in Section 5.2Acquired Assets;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller is proceeding shall be overtly threatened or pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable judgment, order, decree, rulingstipulation, injunction or charge would could reasonably be expected to (iA) prevent consummation of any of the transactions contemplated by this Purchase Agreement, (iiB) cause any of the transactions contemplated by this Purchase Agreement to be rescinded following consummation, or (iiiC) affect materially and adversely the right of the Buyer to own the Acquired Shares and the right of any Acquired Corporation to own, operate or control the Acquired Assets and to operate the Business (and no such judgment, order, decree, rulingstipulation, injunction or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller Fibreboard shall have delivered to Buyer on and dated as of the Closing Date a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(dSections 7.1(i), (ii) and (iv) is satisfied in all material respects;
(fvi) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the XxxxHart-Xxxxx-Xxxxxx Act Xxx shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3been terminated;
(gvii) Xxxxx the Title Agent shall be prepared to deliver to Buyer an ALTA owner's title insurance policy (10-17-92 Form) dated the Closing Date, covering the Owned Real Property, issued by the Title Agent insuring the fee simple title of the Acquired Corporations in such real estate, subject only to Permitted Exceptions;
(viii) Buyer shall have received from counsel to Seller Fibreboard an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date in the form attached as Exhibit D;
(ix) except as set forth in the Disclosure Schedule as of the Effective Date, there shall have been no adverse change in the Value of the Acquired Assets as compared to the Effective Date;
(hx) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent Fibreboard shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially an executed withholding certificate in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and theE;
(nxi) Fibreboard shall have delivered to Buyer a pay-off letter from Lender, in a form reasonably satisfactory to Buyer;
(xii) all actions to be taken by Seller Fibreboard in connection with the consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, instruments and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7.1 (other than Section 7.1(vi)) if it Buyer executes and delivers to Fibreboard a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase and Indemnification Agreement (Ski Lifts Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article §3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller Dxxx shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(c) Seller Dxxx shall have procured all of the third-third party consents specified in Section 5.2§5.2 above and the title insurance commitment specified in §5.7 above;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets Assets, and to operate the former businesses of the Business (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller The parties shall have agreed upon an Estimated Closing Balance Sheet;
(f) Dxxx shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d§7.1(a)-(d) is satisfied in all respects;
(fg) all applicable waiting periods (Dxxx and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act Buyer shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section §3.3 and Section 4.3§4.3 above, if so required;
(gh) Xxxxx the Parties shall have received from counsel to Seller an opinion entered into a Supply Agreement and a Manufacturing Agreement in form and substance as set forth in Exhibit D attached to this AgreementExhibits 7.1A and B, addressed to Buyer respectively, and dated as of the Closing Date;
(h) Buyer same shall be satisfiedin full force and effect, in its sole discretion, after visits with including the customers mutually satisfactory completion of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing all exhibits and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closingschedules thereto;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller Dxxx in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, Exhibits and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer;
(j) there shall not have occurred any material adverse change in the business, operations or prospects of the Business nor any destruction or significant damage to any material asset of the Business;
(k) Buyer shall have completed its due diligence review of the Business, the results of which must be satisfactory to Buyer in Buyer’s sole discretion; provided, however, if Buyer has not completed this review within 45 days of the date of this Agreement, or such later date to which the Parties agree, or Buyer has not duly invoked this condition, then Buyer shall be deemed to have waived this condition;
(l) Buyer shall have completed its environmental review of the Business, the results of which must be satisfactory to Buyer in Buyer’s sole discretion; provided, however, if Buyer has not completed this review within 45 days of the date of this Agreement, or Buyer has not duly invoked this condition, then Buyer shall be deemed to have waived this condition; and
(m) Dxxx shall have delivered to Buyer the Disclosure Letter contemplated by this Agreement, the contents of which must be acceptable to Buyer, in its sole discretion. Buyer may waive any condition specified in this Section 6.1 §7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of the Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(aA) the The representations and warranties set forth in Article 3 and Article 5 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bB) Seller The Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(cC) Seller MM&S shall have procured all of the third-third party consents specified in Section 5.26.3 above;
(dD) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own MM&S Shares and to control MM&S, or (iv) affect adversely the Acquired Assets right of any of MM&S to own its assets and to operate the Business its business (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(eE) Seller MM&S shall not have granted any compensation or bonus to any employee in connection with the transactions contemplated hereunder other than as approved by Buyer;
(G) On or prior to the Closing Date, Sellers or MM&S, as the case may be, will have delivered to Buyer a certificate to the effect that each all of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
following (f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date, except as otherwise indicated):
(1) A certificate, dated not earlier than the fifth (5th) Business Day prior to the Closing Date, of the Minnesota Secretary of State stating that MM&S is in good standing;
(h2) Buyer shall be satisfied, A certificate of each Seller and of an officer of the Company certifying that each of the conditions set forth in its sole discretion, after visits with Sections 8.2(A) through (C) has been and is satisfied as of the customers time of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i3) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation A certificate of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number Secretary of holders of Seller’s voting stock agreeing MM&S (i) certifying that attached to vote such certificate are true and complete copies of (a) MM&S's articles of incorporation, as amended through and in favor effect on the Closing Date, (b) MM&S's bylaws, as amended through and in effect on the Closing Date, and (c) resolutions of approval MM&S's board of directors authorizing the execution, delivery and performance of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action transaction documents to which MM&S is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided party and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this AgreementAgreement and the transaction documents to which MM&S is a party, and all certificates(ii) certifying as to the incumbency of the officer(s) of MM&S executing this Agreement and the transaction documents on behalf of such entity;
(4) An opinion of counsel to MM&S and Sellers, opinions, instruments, and in substantially the form attached as Exhibit E; and
(5) Such other documents required or instruments as Buyer reasonably request and are reasonably necessary to effect the transactions contemplated by this Agreement will 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.Agreement; and
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 Section 3(a) and Sections 4-7 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)if made on the Closing Date;
(bii) Seller MEI and the Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller there shall have procured all of the third-party consents specified in Section 5.2;
(d) no actionnot be any injunction, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent ruling in effect preventing consummation of any of the transactions contemplated by this Agreement, (ii) cause no condition or restriction of any governmental or regulatory authority shall be in effect and no claim, action, suit, investigation of other proceeding shall be pending or threatened before any court or governmental or regulatory authority that presents a substantial risk of the restraint or prohibition of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right obtaining of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, material damages or charge having any effect described other relief in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect)connection therewith;
(eiv) Seller Sellers' Representative shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d10(a)(i)-(iii) is satisfied in all respects;
(fv) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the XxxxHart-XxxxxScott-Xxxxxx Rodino Act shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated been texxxxxxxx xxx xxx Parties and Seller, and Xxxxx has MEI shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments, governmental agencies referred to in Section 3.3 3(a)(ii), Section 3(b)(ii), Section 4(c), Section 5(c), Section 6(g) and Section 4.3;
(g7(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instrumentsabove, and other documents required third parties other than those that the failure to effect obtain would not, individually or in the transactions contemplated by this Agreement will be reasonably satisfactory in form aggregate, have a Material Adverse Effect; provided that the consents 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.waivers listed on Annex I hereto shall have been obtained;
Appears in 1 contract
Samples: Purchase Agreement (Pantry Inc)
Conditions to Obligation of Buyer. The In the event that Buyer exercises the Option, the obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 ' 3(b) and ' 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)date;
(bii) Seller VIVA shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the ClosingClosing date;
(ciii) Seller VIVA shall have procured all of the third-third party consents specified in Section 5.2;' 5(b) above; 143
(div) with respect to any party to this Agreement, no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any national, federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following its consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets Shares and to acquire control of VIVA as of the Closing date, or affect adversely the right of VIVA to own its assets and to operate the Business its business (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller the Shareholders and VIVA shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d' 7(a)(i)-(iv) is satisfied in all respects;
(fvi) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act applicable law shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. been terminated and Seller, the Buyer and Xxxxx has the Shareholders shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced in Section 3.3 governments and Section 4.3governmental agencies referred to herein;
(gvii) Xxxxx Buyer shall have received from counsel to Seller the Shareholders an opinion in form and substance as set forth acceptable to Buyer which shall provide, among other things, opinions relating to the existence and capitalization of VIVA, effectiveness and ownership of the Channel Licenses, the absence of any nonfulfilled requirements for approvals from Local Authorities or third parties for the consummation of the transactions described herein, the absence of any Local Laws prohibiting the transactions contemplated herein and other matters routinely opined to by counsel for sellers and corporations in Exhibit D attached transactions similar to this Agreementthose contemplated hereby, addressed to Buyer Buyer, and dated as of the Closing Date;date; 144
(hviii) Buyer shall be satisfiedhave closed, in its sole discretion, after visits with and received the customers of Seller listed on Disclosure Schedule 3.12, that proceeds from the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues Offering necessary to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before proceed to Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nix) all actions to be taken by Seller the Shareholders or VIVA in connection with the consummation of the transactions contemplated by this Agreement, at the Closing and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement at the Closing will be reasonably satisfactory in form and substance to Buyer;
(x) Buyer shall have completed its business, regulatory, legal and accounting due diligence investigation of VIVA, the results of which shall be satisfactory to the Underwriter(s) of the Offering in their sole discretion;
(xi) The Shareholders of Centuri\n shall have amended its Articles of Incorporation/Bylaws to grant the necessary supermajority rights to Buyer as required in that certain Centuri\n Shareholders Agreement effective as of November 8, 1996.
(xii) The Shareholders shall have caused Caracas Wireless Vision, S.A., a company organized and existing under the laws of the Republic of Venezuela, and Centuri\n, as appropriate, to assign to VIVA the leases, the Permits, and the insurance policies referenced in paragraphs 4(e), 4(l), 4(s) and 4(w) of the Agreement.
(xiii) The Shareholders shall have executed the Holding Trust and the Escrow Agreement. Buyer may waive any condition specified in this Section 6.1 ' 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Option and Stock Purchase Agreement (Wireless Cable & Communications Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:conditions (any of which may be waived by Buyer in whole or in part):
(ai) the representations and warranties set forth in Article Section 3 and Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) The Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller shall have procured all All authorizations, consents and approvals of the third-party consents governments and governmental agencies and third parties specified in Section 5.26(b) above (including, without limitation, any consents of regulatory authorities including state banking departments, the consent to the sublease by NTS Property IV and consents required by any software licensors, if applicable) shall have been procured;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets MAMO Shares and to control MAMO, or (D) affect adversely the right of MAMO to own its assets and to operate the Business its businesses (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) The Seller and MAMO shall each have delivered to Buyer a certificate signed by its president or chief executive officer to the effect that each of the conditions specified above in Section 6.1(a)-(d8(a)(i)-(iv) is satisfied in all respects;
(fvi) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3been terminated;
(gvii) Xxxxx MADPI and Seller shall have executed and delivered the Processing Agreement, and all other documents required under this Agreement, and the same shall be in full force and effect;
(viii) The Seller shall have executed and delivered, or caused to be executed and delivered, the Assignment Documents relating to internally developed software applications:
(ix) MADPI and Seller shall have executed and delivered the Sublease Agreement;
(x) The Seller and MADPI shall have executed and delivered a Facility Sharing Agreement;
(xi) If applicable, the Seller and MADPI shall have executed and delivered the Joint Services Agreement;
(xii) The Seller and MAMO shall have executed and delivered the License Agreement;
(xiii) Buyer shall have received from Seller's counsel to Seller an opinion in form and substance as set forth in Exhibit D attached reasonably acceptable to this AgreementBuyer, addressed to Buyer Buyer, and dated as of the Closing Date;
(hxiv) Seller shall have delivered an incumbency certificate and an officers certificate with respect to Seller's and MAMO's charter, by-laws and resolutions (in the case of Seller) approving this Agreement and other matters reasonably requested by Buyer;
(xv) Seller shall have delivered, or caused to be delivered, written resignation letters for each of MAMO's officers and directors;
(xvi) Buyer shall be satisfied, satisfied in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, discretion that the material relationships with those customers will survive financial statements described in Sections 4(g) and 6(h) shall be sufficient to meet Buyer's reporting requirements under the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;Exchange Act; and
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nxvii) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will 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.
Appears in 1 contract
Samples: Stock Purchase Agreement (Moneygram Payment Systems Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 Section 3(a) and Section 4 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date Date;
(ii) from the date of this Agreement through the Closing Date, no material adverse change in the Business taken as though then madea whole shall occur, other than material adverse changes arising from or relating to general economic changes in the United States or the world, changes in the load cell and sensor industry in general or developments arising from or associated with the announcement or consummation of the transactions contemplated by this Agreement (all of which risks are being assumed by Buyer hereunder);
(biii) Seller Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(civ) Seller there shall have procured all of the third-party consents specified in Section 5.2;
(d) no actionnot be any injunction, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, litigation or charge would (i) in effect or threatened preventing or attempting to prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following or seeking damages in connection with such consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(fv) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx HSR Act and any applicable European or national merger regulations shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3been terminated;
(gvi) Xxxxx Buyer shall have received from counsel to Seller Sellers an opinion in form and substance as set forth in Exhibit D 7 (A)(vi) attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;; and
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(mvii) Buyer shall have obtained non-compete agreements substantially received from the Sellers stock certificates representing the shares of RTI issued in the name of Buyer and stock transfer forms in the form agreed to by Buyer transferring the entire issued share capital of Exhibit E attached to this Agreement from each Meadowgrip duly executed by the registered holder of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 Closingsuch shares.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 Section 3(a) and Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller the Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(diii) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the Business its businesses (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(eiv) Seller the Parties, the Target, and its Subsidiaries shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 3(a)(i), Section 3(b)(ii), and Section 4.3;4(c) above, and all necessary consents, releases, or approvals, if any, required under the Salick Agreements and the Fleet Credit Facility.
(gv) Xxxxx all regulatory agencies shall have received taken such action as may be required to permit the consummation of the transactions contemplated hereby.
(vi) there shall have been no material adverse change in the business or financial condition of either the Target or its Subsidiaries from counsel May 31, 1999, to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(hvii) at or prior to the Closing, Sellers shall have extinguished all of its indebtedness and shall have obtained all releases, termination of liens, and other claims, and encumbrances necessary to transfer the Target Shares to Buyer free and clear of all liens, claims and encumbrances, or shall have delivered to Buyer pay-off letters in form reasonably acceptable to Buyer;
(viii) the Buyer shall be satisfiedhave received the resignations, effective as of the Closing, of each director other than Xxxx Xxxxxxx and such officers of the Target and its Subsidiaries whom the Buyer shall have specified in its sole discretion, after visits with writing at least five (5) business days prior to the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nix) all actions to be taken by Seller the Sellers in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to the Buyer. ;
(x) Buyer may waive any condition specified shall have satisfied itself, in its sole discretion, that not less than forty percent (40%) of Targets customer base in existence as of the date of this Agreement have been successfully converted to the Xxxxxx Software payroll module and Visual Basic Billing Applications;
(xi) The Sellers shall have delivered to Buyer the various certificates, instruments, and documents referred to in Section 6.1 if it executes a writing so stating 7(d); and
(xii) at or prior to the Closing, Sellers' shall have transferred and conveyed to Target all shares in Upgrad Personnel Services, Inc. standing in the name of Sellers.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:conditions unless, in the case of the conditions set forth in paragraphs (i), (ii), (iii), (v) or (ix) of this Section 7.1, the failure of one or more of such conditions does not result, in the aggregate, in an adverse effect on, or an adverse change in, the Value of the Acquired Assets in an amount in excess of One Million dollars ($1,000,000):
(ai) the representations and warranties set forth in Article 3 Section 4 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Fibreboard shall have performed and complied with all of its covenants under this Agreement in all material respects hereunder through the Closing;
(ciii) Seller all consents and approvals of third parties including the Forest Service and all other governmental agencies required on or before the Closing in connection with the change in ownership of the Acquired Shares from Fibreboard to Buyer and listed on APPENDIX 5 shall have procured all been obtained and such consents and approvals shall not impose conditions that make it impracticable for the Acquired Corporations to continue to conduct the Businesses or result in an adverse effect on the Value of the third-party consents specified in Section 5.2Acquired Assets;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller is proceeding shall be overtly threatened or pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable judgment, order, decree, rulingstipulation, injunction or charge would could reasonably be expected to (iA) prevent consummation of any of the transactions contemplated by this Purchase Agreement, (iiB) cause any of the transactions contemplated by this Purchase Agreement to be rescinded following consummation, or (iiiC) affect materially and adversely the right of the Buyer to own the Acquired Shares and the right of any Acquired Corporation to own, operate or control the Acquired Assets and to operate the Business (and no such judgment, order, decree, rulingstipulation, injunction or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller Fibreboard shall have delivered to Buyer on and dated as of the Closing Date a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(dSections 7.1(i), (ii) and (iv) is satisfied in all material respects;
(fvi) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3been terminated;
(gvii) Xxxxx the Title Agent shall be prepared to deliver to Buyer an ALTA owner's title insurance policy (10-17-92 Form) dated the Closing Date, covering the Owned Real Property, issued by the Title Agent insuring the fee simple title of the Acquired Corporations in such real estate, subject only to Permitted Exceptions;
(viii) Buyer shall have received from counsel to Seller Fibreboard an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date in the form attached as EXHIBIT D;
(ix) except as set forth in the Disclosure Schedule as of the Effective Date, there shall have been no adverse change in the Value of the Acquired Assets as compared to the Effective Date;
(hx) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent Fibreboard shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially an executed withholding certificate in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and theEXHIBIT E;
(nxi) Fibreboard shall have delivered to Buyer a pay-off letter from Lender, in a form reasonably satisfactory to Buyer;
(xii) all actions to be taken by Seller Fibreboard in connection with the consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, instruments and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7.1 (other than Section 7.1(vi)) if it Buyer executes and delivers to Fibreboard a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase and Indemnification Agreement (Fibreboard Corp /De)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the The representations and warranties set forth in Article 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Xxxxxxx shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller Xxxxxxx shall have procured all of the third-third party consents specified in Section 5.2Exhibit C, all of the Title Reports specified in section 5(h) above and a title insurance policy in connection therewith shall be issued to Buyer, and all of the Surveys specified in section 5(i) above;
(div) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, or to Seller’s Knowledge, Xxxxxxx'x Knowledge threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, license or lease the Acquired Assets and or, to operate the Business former business of Xxxxxxx (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller ; Xxxxxxx shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(dsection 6(a)(i)-(iv) is has been satisfied in all respects;
(fv) all All applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act HSR shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here been terminated, no "second request" for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated information under HSR shall have been received and Seller, Xxxxxxx and Xxxxx has Buyer shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 section 3(c) and Section 4.3section 4(c) above;
(gvi) Xxxxx Buyer shall have received from counsel to Seller Xxxxxxx an opinion in form and substance as set forth in Exhibit D E attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(mvii) Buyer shall have obtained non-compete agreements substantially received audited balance sheet and statement of income, changes in stockholders' equity and cash flow at and for the form year ended December 31, 1998 for BHI, BHM and BP on a combined basis, meeting the requirements of Exhibit E Regulation S- X of the Securities and Exchange Commission all as audited and certified by independent certified public accountants,Deloitte & Touche LLP, and such financial statements shall not differ materially and adversely from the Financial Statements for such period attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and theas Exhibit D;
(nviii) all All actions to be taken by Seller Xxxxxxx in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby (including but not limited to certified resolutions approving the transaction, certificates of good standing, and certified organizational documents) will be reasonably satisfactory in form and substance to BuyerBuyer and its counsel; and
(ix) Buyer shall have received an affidavit from Xxxxxxx that it is not a "foreign person" for withholding purposes under Sec. 1445 of the Internal Revenue Code of 1986, as amended. Buyer may waive any condition specified in this Section 6.1 section 6(a) if it executes a writing so stating at or prior to the Closing.
(x) WHI and LWB shall have entered into the organizational and operating agreements for the land development limited liability company as outlined on Exhibit F, and Buyer shall have entered into the Lot Option Agreements with such company as listed on Exhibit G.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller shall have procured all of the third-third party consents specified in Section 5.25(b) above, and Buyer shall have procured all of the title insurance commitments, policies, and riders specified in Section 5(h) above, and all of the surveys specified in Section 5(i) above, all of which title insurance commitments, policies and riders, and surveys, shall be in form and substance satisfactory to Buyer in Buyer's sole discretion;
(div) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and Assets, to operate the Business former businesses of Seller (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i) through Section 6(a)(iv) is satisfied in all respects; 47
(vi) Buyer shall have entered into a side agreement in form and substance as set forth in Exhibit G attached hereto with Gary Xxxxxx and the same shall be in full force and effect;
(fvii) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D H attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nviii) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Source Information Management Co)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a1) the The representations and warranties set forth in Article 3 §3(a) and §4 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b2) Each of Seller and Norstan shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(c3) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets Purchased Interest and to control Connaissance, or (D) affect adversely the right of Connaissance to own its assets and to operate the Business its businesses (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e4) Each of Seller and Norstan shall have delivered to Buyer a certificate of a duly authorized officer to the effect that each of the foregoing conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f5) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D E attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;
(h6) Buyer shall be satisfiedOn or before noon on February 2, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) 2001 Seller shall have executed received or waived receiving the consent of its principal lender as a condition to Seller’s and delivered Norstan’s obligations pursuant to Buyer the Assignments;§6(b)(5); and
(l7) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all All actions to be taken by Each of Seller and Norstan in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 §6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Purchase Agreement (Norstan Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article 3 Section 3(a) and Sections 4-7 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)if made on the Closing Date;
(bii) Seller MEI and the Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller there shall have procured all of the third-party consents specified in Section 5.2;
(d) no actionnot be any injunction, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent ruling in effect preventing consummation of any of the transactions contemplated by this Agreement, (ii) cause no condition or restriction of any governmental or regulatory authority shall be in effect and no claim, action, suit, investigation of other proceeding shall be pending or threatened before any court or governmental or regulatory authority that presents a substantial risk of the restraint or prohibition of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right obtaining of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, material damages or charge having any effect described other relief in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect)connection therewith;
(eiv) Seller Sellers' Representative shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d10(a)(i)-(iii) is satisfied in all respects;
(fv) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. been terminated and Seller, the Parties and Xxxxx has MEI shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments, governmental agencies referred to in Section 3.3 3(a)(ii), Section 3(b)(ii), Section 4(c), Section 5(c), Section 6(g) and Section 4.3;
(g7(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instrumentsabove, and other documents required third parties other than those that the failure to effect obtain would not, individually or in the transactions contemplated by this Agreement will be reasonably satisfactory in form aggregate, have a Material Adverse Effect; provided that the consents 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.waivers listed on Annex I hereto shall have been obtained;
Appears in 1 contract
Samples: Purchase Agreement (Pantry Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the 9.1.1 Seller’s representations and warranties set forth in Article 3 shall be herein are true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) 9.1.2 through Closing, Seller shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closingrespects;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) 9.1.3 no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand proceeding shall be pending against Seller is pending or, to Seller’s Knowledge, threatened Buyer before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of Buyer to own and operate the Buyer Acquired Assets, or (D) affect adversely the right of Seller to own the Acquired Assets and to operate the Business (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller 9.1.4 after Closing, Buyer shall have delivered promptly seek to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received obtain all other authorizations, consents consents, and approvals of the Governmental Agencies referenced in Section 3.3 governments and Section 4.3governmental agencies referred to herein;
(g) Xxxxx 9.1.5 any audit of Seller that is required by the SEC shall have received from counsel to Seller an opinion in form been completed and substance as set forth in Exhibit D attached to this Agreement, addressed to and approved by Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole but reasonable discretion;
9.1.6 Buyer’s sole and arbitrary review and approval of all information and records of Seller, after visits with whether or not related to the customers of Seller listed on Disclosure Schedule 3.12Claims, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its deems appropriate for due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;review; and
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) 9.1.7 all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreementherein, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement such transactions, will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 9.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 3 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made);
(b) Seller shall have performed and complied with all of its covenants under this Agreement in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of (the “Named Officers”);70 and 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the The representations and warranties set forth in Article section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Xxxxxxx shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller Xxxxxxx shall have procured all of the third-third party consents specified in Section 5.2Exhibit C, all of the Title Reports specified in section 5(h) above and a title insurance policy in connection therewith shall be issued to Buyer, and all of the Surveys specified in section 5(i) above;
(div) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, or to Seller’s Knowledge, Xxxxxxx'x Knowledge threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or before any arbitrator as a result of which foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, license or lease the Acquired Assets and or, to operate the Business former business of Xxxxxxx (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller ; Xxxxxxx shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(dsection 6(a)(i)-(iv) is has been satisfied in all respects;
(fv) all All applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act HSR shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here been terminated, no "second request" for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated information under HSR shall have been received and Seller, Xxxxxxx and Xxxxx has Buyer shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 section 3(c) and Section 4.3section 4(c) above;
(gvi) Xxxxx Buyer shall have received from counsel to Seller Xxxxxxx an opinion in form and substance as set forth in Exhibit D E attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(mvii) Buyer shall have obtained nonreceived audited balance sheet and statement of income, changes in stockholders' equity and cash flow at and for the year ended December 31, 1998 for BHI, BHM and BP on a combined basis, meeting the requirements of Regulation S-compete agreements substantially in X of the form of Exhibit E Securities and Exchange Commission all as audited and certified by independent certified public accountants,Deloitte & Touche LLP, and such financial statements shall not differ materially and adversely from the Financial Statements for such period attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and theas Exhibit D;
(nviii) all All actions to be taken by Seller Xxxxxxx in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby (including but not limited to certified resolutions approving the transaction, certificates of good standing, and certified organizational documents) will be reasonably satisfactory in form and substance to BuyerBuyer and its counsel; and
(ix) Buyer shall have received an affidavit from Xxxxxxx that it is not a "foreign person" for withholding purposes under Sec. 1445 of the Internal Revenue Code of 1986, as amended. Buyer may waive any condition specified in this Section 6.1 section 6(a) if it executes a writing so stating at or prior to the Closing.
(x) WHI and LWB shall have entered into the organizational and operating agreements for the land development limited liability company as outlined on Exhibit F, and Buyer shall have entered into the Lot Option Agreements with such company as listed on Exhibit G.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to the satisfaction of the following further conditions:
(a) (i) each of Seller and its Affiliates shall have performed in all material respects all of its obligations hereunder required to be performed or complied with by it on or prior to the Closing Date; (ii) (other than with respect to the New York Accident and Health Coinsurance Agreement, the New York Accident and Health Administrative Services Agreement and the New York Accident and Health Business, if the NY Closing Date is not the Closing Date) each of the representations and warranties set forth of Seller contained in Article 3 Section 3.01, Section 3.02, Section 3.05, Section 3.06, and Section 3.16 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; (except for iii) each of the other representations and warranties limited by material adverse effect or material adverse change, which of Seller contained in this Agreement shall be true and correct (determined for this purpose disregarding “material”, “materiality” or “Material Adverse Effect” qualifications except with respect to the representations and warranties set forth in all respectsSection 3.08) at and as of the Closing Date Date, as if made at and as of such date (other than representations and warranties as though then madeof a specified date, which will be true and correct as of such date), with only such exceptions as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; and (iv) Buyer shall have received a certificate signed by a senior executive officer of Seller to the effect of the foregoing clauses (i), (ii) and (iii);
(b) subject to Section 7.09 hereof, Seller and each of its Affiliates which is a party to an Ancillary Agreement contemplated to be executed and delivered at the Closing shall have performed executed and complied with all delivered each such agreement, substantially in the form attached hereto and in the case of its covenants under this Agreement in all material respects through the ClosingRestructuring Agreement, consummated the transactions contemplated thereby on the terms thereof;
(c) Seller subject to Section 7.09 hereof, all authorizations, consents, Orders, approvals, declarations and filings contemplated by Section 9.01(a) and Section 9.01(b) shall have procured all been obtained or made without the imposition of any conditions, requirements or prohibitions upon Buyer, the third-party consents specified Company or any of their respective Affiliates that would reasonably be expected to result in Section 5.2a Material Adverse Effect or to materially impair the net benefits that Buyer reasonably expects to obtain from the Contemplated Transactions;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Buyer shall have received a certificate signed by the secretary of Seller is pending or, attaching all documents Buyer may reasonably request with respect to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result the authorization of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent consummation each of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by Seller and its Affiliates with respect to this Agreement and any Ancillary Agreements to be rescinded following consummationexecuted and delivered at the Closing to which it is a party, or (iii) affect adversely the right of the Buyer as applicable, all in form and substance reasonably satisfactory to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect)Buyer;
(e) Seller shall have delivered all authorizations, consents or approvals by or notices to, or filings with, any Person that are required to Buyer a certificate to consummate the effect that each Contemplated Transactions as disclosed in Section 9.02(e) of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respectsDisclosure Schedules, will have been obtained or made, and no such authorization, consent or approval will have been revoked;
(f) all applicable waiting periods since December 31, 2007, (and any waiting period extensionsi) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Sellerno Material Adverse Effect has occurred, and Xxxxx (ii) no circumstance, change or event has received all other authorizationsoccurred or exists, consents and approvals of the Governmental Agencies referenced that would reasonably be expected to result in Section 3.3 and Section 4.3a Material Adverse Effect;
(g) Xxxxx subject to Section 7.09 hereof, no Action shall have received from counsel be pending by an Insurance Regulator which seeks to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as impose conditions upon the ownership or operations of the Closing Date;Company or the operations of Buyer or any Affiliate of Buyer that would reasonably be expected to result in a Material Adverse Effect or to materially impair the net benefits that Buyer reasonably expects to obtain from the Contemplated Transactions; and
(h) Buyer there shall not be satisfieda downgrade by Standard & Poor’s or Xxxxx’x Investors Service, in its sole discretion, after visits with Inc. of the customers debt rating of Seller listed on Disclosure Schedule 3.12to a rating below “BB-” or “Ba3”, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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 Closingrespectively.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hanover Insurance Group, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Section 3.1 and Article 3 4 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller Each of Xxxxxx, Xxxxxx Sales and Xxxxxx shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents Contract Consents to the extent specified in Section 5.2Disclosure Schedule 2.6(b), or with respect to any material Assumed Contract for which such Contract Consent has not been obtained, Seller shall have provided Buyer with an alternative arrangement reasonably satisfactory to Buyer ensuring that following the Closing, Buyer will receive the benefits under such contract;
(d) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Gift Business (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d7.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods The relevant parties shall have executed and delivered (or tendered subject to Closing) the (i) Assignment/Assumption Agreement, (ii) Xxxx of Sale; (iii)Transition Services Agreement, (iv) the Lease Agreement and any waiting period extensions(v) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3Real Estate Conveyances;
(g) Xxxxx Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached reasonably satisfactory to this AgreementBuyer, addressed to Buyer Buyer, and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) received all actions to be taken by Xxxxxx and Seller in connection with consummation of the transactions contemplated by this Agreement, and all hereby; and
(i) All certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the representations and warranties set forth in Article Section 2(g) and Section 3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Sellers shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(ciii) Seller there shall have procured all of the third-party consents specified in Section 5.2;
(d) no actionnot be any injunction, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) prevent in effect preventing or materially affecting consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(eiv) Seller Sellers shall have delivered to Buyer a certificate from the chief executive officer and chief financial officer of Chatham to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i)-(iii) is satisfied in all respects;
(fv) all applicable waiting periods (and any waiting period extensionsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act HSR shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. been terminated and Seller, Chatham and Xxxxx has Buyer shall have received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 3(c) and Section 4.34(c) above;
(gvi) Xxxxx Buyer shall have received from counsel to Seller Sellers an opinion in form and substance as set forth in Exhibit D H attached to this Agreementhereto, addressed to Buyer Buyer, and dated as of the Closing Date;
(hvii) Buyer shall be satisfiedand Arnoxx X. Xxxxxxxxx, in its sole discretionXxelxxx X. Xxxxxxxxx, after visits with the customers of Seller listed on Disclosure Schedule 3.12Xxrt X. Xxxxxxxxx, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.Xxmuxx X.
Appears in 1 contract
Samples: Stock Purchase Agreement (Reliance Steel & Aluminum Co)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(ai) the The representations and warranties set forth in Article 3 SECTION 3(A) and SECTION 4 above shall be true and correct in all material Material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(bii) Seller Sellers shall have performed and complied with all of its their covenants under this Agreement hereunder in all material Material respects through the Closing;
(ciii) Seller Target shall have procured all of the third-governmental or third party consents and approvals specified in Section 5.2;SECTION 5(B) including any landlord consents related to any rental property.
(div) no No action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, or threatened before any court or quasi-judicial or administrative agency within the jurisdiction of any Governmental Agency or before any arbitrator as a result of which Authority wherein an unfavorable judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) adversely affect adversely the right of the Buyer to own own, operate, or control the Acquired Assets and to operate the Business Shares or Target (and no such judgment, order, decree, rulingstipulation, injunction, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(ev) Seller Sellers shall have delivered to Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Section 6.1(a)-(dSECTION 7(A)(I)-(IV) is satisfied in all respects;
(fvi) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx Buyer shall have received from counsel to Seller an opinion each of the Key Employees executed employment agreements in the form and substance attached hereto as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing DateEXHIBIT B;
(hvii) Buyer shall be satisfiedAll officers, in its sole discretion, after visits with the customers directors and key employees of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing Target and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation each of the Business;
(j) Buyer, Seller, and the Escrow Agent Sellers shall have entered into the Escrow Agreementrepaid in full all debts or other obligations, if any, owed to Target;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement will 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:;
(ai) the representations and warranties set forth in Article Section 3 and Section 4(a) above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made);
(b) Seller and the covenants of Sellers in Section 5 above shall have performed and been complied with all of its covenants under this Agreement in all material respects through the Closing;
respects; (c) Seller ii)Sellers shall have procured all of the third-Governmental Body and third party consents specified as Required Consents in Section 5.2;
Schedules 3(c) and 4(a)(iii) at or prior to the Closing; (diii) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, suit or demand against Seller proceeding is pending or, to Seller’s Knowledge, threatened before any court Governmental Body or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which wherein an unfavorable judgment, order, decree, ruling, or charge Order would (iA) prevent consummation of any of the transactions contemplated by this AgreementAgreement or the other Transaction Documents, (iiB) cause any of the transactions contemplated by this Agreement or the other Transaction Documents to be rescinded following consummation, consummation or (iiiC) materially affect adversely the Limited Liability Interests or their value or the right of the Buyer to own the Acquired Assets Limited Liability Interests and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will such Order shall be in effect);
; (eiv)all registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers required in respect of the transactions contemplated hereby shall have been filed, made or obtained, and all waiting periods applicable under Law, including, without limitation, under the HSR Act, shall have expired or been terminated; (v) Seller Sellers shall have delivered to Buyer a certificate signed by the Chief Executive Officer or a Vice President of Sellers to the effect that each of the conditions specified above in Section 6.1(a)-(d6(a)(i)-(iv) is satisfied in all respects;
; (f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx vi)Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as or on behalf of Sellers delivery of all the Closing Date;
Documents listed in Section 7(a) below; (h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(nvii) all actions to be taken by each Seller in connection with consummation of the transactions contemplated hereby and by this Agreement, the other Transaction Documents and all certificates, opinions, instruments, instruments and other documents required to effect the transactions contemplated by this Agreement hereby and thereby will 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 ; (viii) Sellers shall have delivered prior to Closing a complete, accurate and current, as of a date within one week prior to Closing, "marketing extract" in electronic form useable by Buyer, extracted from Company's database. The marketing extract shall include, and each Seller hereby covenants that it will include:
(A) The names of all customers and potential customers, with addresses, ever obtained by Company, including but not limited to, the Closingnames and addresses of all customers, inquirers, ship to's, "giftees," specifiers, resellers, etc.;
(B) For non-buyers, all retained information, including but not limited to, demographics, source codes and recency data; (C) For buyers, associated transaction details, including but not limited to, dates and promotional sources of all transactions, products purchased in each transaction since January 1, 1995, partial customer service history associated with each transaction, pay type and credit worthiness information, demographic information, etc.; and
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 3 4 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller Each of Sellers and the Subsidiaries shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no actioninjunction, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, ruling or charge would (i) shall be in effect which purports to prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(ed) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d7.1(a) through 7.1(c) is satisfied in all respects;
(fe) all applicable the waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx HSR Act shall have expired or otherwise beenbeen terminated early;
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by (f) the board of directors of relevant parties shall have executed and delivered (or tendered subject to Closing) the seller in satisfaction of its fiduciary duties to (i) Assignment/Assumption Agreement, (ii) the seller’s shareholders. terminated and SellerReal Estate Conveyances, and Xxxxx has received all other authorizations, consents and approvals of (iii) the Governmental Agencies referenced in Section 3.3 and Section 4.3IP Assignments;
(g) Xxxxx Buyer shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreementthe resignations, addressed to Buyer and dated effective as of the Closing Date;Closing, of each director and officer of the Subsidiaries; and
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller Sellers in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaylord Entertainment Co /De)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 3 (S)3 above shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made)Date;
(b) Seller Xxxx shall have performed and complied with all of its covenants under this Agreement hereunder in all material respects through the Closing;
(c) Seller Xxxx shall have procured all of the third-third party consents specified in Section 5.2(S)5.2 above and the title insurance commitment specified in (S)5.7 above;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is proceeding shall be pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency agency of any federal, state, local, or foreign jurisdiction or before any arbitrator as a result of which wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets Assets, and to operate the Business former businesses of the Division (and no such injunction, judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will shall be in effect);
(e) Seller Xxxx shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d(S)7.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (Xxxx and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act Buyer shall have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents consents, and approvals of the Governmental Agencies referenced governments and governmental agencies referred to in Section 3.3 (S)3.3 and Section 4.3(S)4.3 above, if so required;
(g) Xxxxx the Parties shall have received from counsel to Seller an opinion entered into a Supply Agreement in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer 7.1 and dated as of the Closing Datesame shall be in full force and effect;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Disclosure Schedule 3.12, that the material relationships with those customers will survive the Closing and continue in effect so long as Buyer continues to conduct the Business in a manner consistent with Seller’s Ordinary Course of Business before Closing;
(i) Buyer, in its sole discretion, shall be satisfied with the exercise of its due diligence investigation regarding compliance of products manufactured or published by Seller in the operation of the Business;
(j) Buyer, Seller, and the Escrow Agent shall have entered into the Escrow Agreement;
(k) Seller shall have executed and delivered to Buyer the Assignments;
(l) Not later than , Seller shall have obtained and delivered to Buyer written commitments from the necessary number of holders of Seller’s voting stock agreeing (i) to vote in favor of approval of this Agreement and the transactions contemplated by this Agreement at any meeting of the shareholders called for this purpose or (ii) if action is taken on written consent in lieu of a meeting, to execute written consents in favor of this approval;69
(m) Buyer shall have obtained non-compete agreements substantially in the form of Exhibit E attached to this Agreement from each of 69 See supra note 11. 70 It is often prudent for a buyer to obtain agreements not to compete from certain or all shareholders of a closely held corporate seller. Tennessee has for some time followed the majority rule that covenants not to compete will be upheld if they are reasonable in the context of their circumstances. See, e.g., Cent. Adjustment Bureau, Inc. x. Xxxxxx, 678 S.W.2d 28, 32 (Tenn. 1984). The oft-cited reasonableness standard generally is measured by examining the consideration provided and the
(n) all actions to be taken by Seller Xxxx in connection with consummation of the transactions contemplated by this Agreement, hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement hereby will be reasonably satisfactory in form and substance to Buyer;
(i) there shall not have occurred any material adverse change in the business, operations or prospects of the Division nor any destruction or significant damage to any material asset of the Division;
(j) Buyer shall have completed its due diligence review of the Division, the results of which must be satisfactory to Buyer in Buyer's sole discretion (which review shall encompass, without limitation, the ability (including the ability under the Collective Bargaining Agreement) of Buyer to obtain the separate insurance or coverage contemplated by Section 6.14); provided, however, if Buyer has not completed this review within 30 days of the date of this Agreement, or such later date to which the Parties agree, or Buyer has not duly invoked this condition, then Buyer shall be deemed to have waived this condition;
(k) Buyer shall have completed its environmental review of the Division, the results of which must be satisfactory to Buyer in Buyer's sole discretion; provided, however, if Buyer has not completed this review within 35 days of the date of this Agreement, or Buyer has not duly invoked this condition, then Buyer shall be deemed to have waived this condition;
(l) Buyer shall have obtained such evidence or information as shall be satisfactory to it, in its sole discretion, that as of the Closing, book value of the inventory, net of reserves, of the Division is at least $7,000,000 including the value of inventory specifically associated with the Class 37 family of parts to be retained by Xxxx;
(m) Buyer shall have obtained such evidence or information as shall be satisfactory to it, in its sole discretion, that, with respect to the Xxxx Corporation Pension Plan for Hourly-Rate Employees of the Xxxxxx Heavy Axle and Brake Division - Xxxxxx assumed by Buyer, the plan assets at a minimum equal plan liabilities as of the Closing, determined on a termination basis; and
(n) On or before 21 days after the date of this Agreement, Xxxx shall deliver to Buyer the Disclosure Letter contemplated by this Agreement, the contents of which must be acceptable to Buyer, in its sole discretion. Buyer may waive any condition specified in this Section 6.1 (S)7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
