Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effect. (b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its Affiliates. (c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv). (d) There shall not have occurred, arisen or otherwise become known since the Effective Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a whole. (e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer. (f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code. (g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request. (h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect. (i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, Date and (ii) the representations and warranties of the Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, time; and (iiiC) Buyer shall have received a certificate signed by the Chief Executive Officer of Seller to the foregoing forgoing effect.
(b) There shall not be threatened (in writingwriting to any Group Company), instituted or pending any action or proceeding by any Person before any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Group Company Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Group Company or any Subsidiary Assets or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (ivii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares Group Company Assets or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesGroup Company Assets, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i9.02(b)(i) through 10.02(b)(ivand 9.02(b)(ii).
(d) There Each Group Company shall not have occurredreceived all required consents (including all consents, arisen authorizations or otherwise become known since approvals from the Effective Date any Governmental Authorities referred to in Section 3.03), in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(e) No event, development, occurrence, revelation change, effect or development condition of a state any character shall have occurred following the date of circumstances or facts whichthis Agreement that, individually or in the aggregate, has had or would could reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeEffect.
(ef) Each of the parties to the Transaction Documents, other than Buyer or Buyer WFOE, shall have executed and delivered such Transaction Documents to Buyer or Buyer WFOE, as applicable.
(g) The closing of the transactions contemplated under the Offshore Asset Transfer Agreement and the Onshore Transaction Documents shall be completed simultaneously at the Closing pursuant to the terms and conditions thereto.
(h) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreementan opinion from Commerce & Finance Law Offices, all in form and substance reasonably satisfactory to Buyer.
(fi) Buyer shall have received an opinion from Han Kun Law Offices, in form and substance satisfactory to Buyer.
(j) Buyer shall have received an opinion from Xxxxxxx Xxxx & Xxxxxxx, in form and substance satisfactory to Buyer.
(k) Each of the individuals listed on Exhibit G shall have entered into an employment agreement with Xxxxx Xxxx in form and substance satisfactory to Buyer, with a non-competition term of two (2) years after the Closing.
(l) Seller shall have delivered to Buyer a certification, signed under penalties resolutions duly adopted by Seller’s board of perjury directors and dated not more than thirty (30) days prior shareholders and such other documents as necessary to approve the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 allocation of the CodePurchase Price among its shareholders and optionholders as set forth in Exhibit I attached hereto.
(gm) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of delivered the Code in form and substance satisfactory Balance Sheet to Buyer and pursuant to Section 2.09.
(n) Seller shall have delivered all documents in connection therewith as to Buyer the Buyer may reasonably request.
(h) The Stockholder Agreement and Consolidated Financial Statements, together with an unqualified audit report thereto issued by Deloitte Touche Tohmatsu. Notwithstanding anything to the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator contrary in the countries listed on Schedule 10.02(i) shall have objected Offshore Asset Transfer Agreement or would be reasonably expected the Onshore Asset Transfer Agreement, no party has any obligation to object to (x) the Closing, (y) consummate the transactions contemplated hereby or (z) thereunder unless all conditions specified in Section 9.02 have been satisfied and the operation closings of such transactions and the entry of the combined business of Buyer and Seller as it is currently expected to be conducted after New Control Documents happen concurrently at the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions::
(a) (i) Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, (iiiii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and Material Adverse Effect) shall be true at and correct as of the Effective Closing Date as if made at and as of such date, and (B) that are not qualified by materiality shall be true in all material respects at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iiiiv) Buyer shall have received a certificate signed by an appropriate officer of Seller to the foregoing effect..
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking their Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its their Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including without limitation, any restriction on the right to vote (on all matters), receive dividends, transfer, sell, or otherwise dispose of any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or its Affiliates, (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares Shares, or (iv) seeking to impede or restrict in any business or assets of Buyer or any of its Affiliates.manner whatsoever the Closing contemplated by this Agreement.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv7.02(b)..
(d) There Seller shall not have occurredreceived all consents, arisen authorizations or otherwise become known since approvals from the Effective Date any eventgovernmental agencies referred to in Section 3.03, occurrenceif applicable, revelation in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to approval shall have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholebeen revoked.
(e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries Seller and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing..
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Each Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company Sellers contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) in any certificate or other writing delivered by any Seller pursuant hereto shall be true and correct as of the Effective Date and at and as of the Closing Date Date, as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by the Chief Executive Officer of each Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, restrain or prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the any Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking their Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary Companies or of Buyer or any of its their or Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Seller Shares, including without limitation, the right to vote any Seller Shares acquired or owned by Seller or any of his its Affiliates on all matters properly presented to the Company’s stockholders Companies' Stockholders or (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesSeller Shares.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Seller Shares, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, other than the application of the waiting period provisions of the HSR Act to the purchase of the Seller Shares, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(iclauses (i) through 10.02(b)(iv)(iii) above.
(d) There Buyer shall not have occurredreceived an opinion of Xxxxxx & Xxxxxxx, arisen counsel to Sellers, dated the Closing Date to the effect specified in Sections 3.1 through 3.4; PROVIDED that with respect to matters relating to the Leases Buyer shall have received an opinion dated the Closing Date from either of Wordes, Wilshin, Xxxxx & Xxxxxx, real estate counsel to Sellers, or otherwise become known since Xxxxxx & Xxxxxxx; and provided further that with respect to matters governed by Nevada law such counsel may rely upon the Effective Date opinion of Nevada counsel reasonably satisfactory to Buyer. In rendering such opinions, such counsel may rely upon certificates of public officers and, as to matters of fact, upon certificates of officers of Sellers or any eventCompany, occurrence, revelation or development copies of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably which certificates shall be expected contemporaneously delivered to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeBuyer.
(e) Buyer shall have received a duly executed copy of the Xxxxx Xxxxxxxx Non-Competition Agreement.
(f) Each Seller shall have delivered a certification for each Company and signed by such Company to the effect that such Company is not nor has it been within 5 years of the date hereof a "United States real property holding corporation" as defined in Section 897 of the Code.
(g) Buyer shall have received all documents it may reasonably request relating to the existence of the each Company and the Subsidiaries and the authority of each Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(fh) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller Sellers shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in respect of each of LMCN and LMCN II in form and substance satisfactory to Buyer Buyer, and Seller Sellers shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall have received certification signed by the Sellers to the effect that none of the Sellers is a "foreign person" as defined in Section 1445 of the Code.
(j) All intercompany account balances due from LMC to each of LMCN and LMCN II shall have been settled at or prior to Closing (provided that any intercompany account balances due from either of LMCN or LMCN II to LMC need not be reasonably satisfied that no applicable regulator settled at or prior to Closing), and substantially all cash and cash equivalents of the Companies shall be the property of LMC.
(k) Each spouse of the Sellers shall have executed and delivered to Buyer a Spouse Consent in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller form attached hereto as it is currently expected to be conducted after the Closing.Exhibit D.
Appears in 1 contract
Samples: Stock Purchase Agreement (Charlotte Russe Holding Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the The representations and warranties of Seller set forth in Article III above (taken collectively and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effectindividually) shall be true and correct as of the Effective Date and in all material respects at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effectDate.
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation Each of the transactions contemplated hereby or the ownership or operation by Buyer or any Shareholders shall have performed and complied with all of its Affiliates of covenants hereunder in all or any material portion of respects through the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesClosing.
(c) There shall not be any action takenNo action, suit, or proceeding shall be pending or threatened before any Applicable Law proposedcourt or quasi-judicial or administrative agency of any local, enactednational or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, enforcedjudgment, promulgatedorder, issued decree, ruling, or deemed applicable to the purchase charge would (i) prevent consummation of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred 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 Buyer to own the Shares or ICR International’s assets, or to operate ICR International’s Business as conducted or as proposed to be conducted (and no such injunction, judgment, order, decree, ruling, or charge shall be in Sections 10.02(b)(i) through 10.02(b)(iveffect).
(d) There The Shareholders and Buyer shall not have occurredexecuted and delivered the Escrow Agreement attached hereto as Exhibit B, arisen or otherwise become known since and all additional transfer documents, if any, required to validly assign the Effective Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or Intellectual Property to Buyer in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholerecordable form.
(e) All required consents (other than those consents listed on Schedule 3.21 attached hereto which Buyer acknowledges shall not be obtained prior to Closing), waivers, authorizations and approvals of any governmental entity, and of any other person or entity, required under the Contracts, Licenses, or otherwise in connection with the execution, delivery and performance of this Agreement, the absence of which would have a material adverse change to ICR International’s Business, or the cancellation or adverse change in terms of, or payments under, any Contract , shall have been duly obtained in form reasonably satisfactory to Buyer, shall be in full force and effect on the Closing Date and the original executed copies shall have been delivered to Buyer on or before the Closing Date.
(f) Buyer shall have received all documents it may entered into an employment arrangement with Xxxx Xxxxxxx on terms and conditions reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory acceptable to Buyer.
(fg) Seller Xxxx Xxxxxxx shall have entered into a noncompetition agreement with Buyer substantially in the form of Exhibit C hereto (the “Noncompetition Agreements”).
(h) All certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.
(i) ICR International shall have delivered to Buyer a certificationcertificate, dated the Closing Date and signed under penalties of perjury and dated not more than thirty (30) days prior by the Shareholders to the Closing Dateeffect that each of the conditions specified in Sections 5.1(a), that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2(b), (c) and confirms that the Seller is not a “foreign person” as defined (e) above have been satisfied in Section 1445 of the Codeall respects.
(gj) Seller The ICR Purchase Agreement and all other documents and certificates contemplated thereby shall have been executed an effective, irrevocable election under Section 338(h)(10) and delivered by the parties thereto and all conditions to the closing of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby thereby shall have been satisfied or (z) waived to the operation satisfaction of the combined business of Buyer and Seller as it is currently expected to be conducted after the ClosingBuyer.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby is subject to the satisfaction on or prior to the Closing of the following further conditionsconditions any of which may be waived by Buyer:
(a) (i) Seller and the Company shall have performed (and shall have caused the Company to perform) in all material respects all of their respective its obligations hereunder required to be performed by it Seller or the Company on or prior to the Closing Date, and (ii) the representations and warranties of Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) in any certificate or other writing delivered by Seller pursuant hereto, shall be true and correct as of the Effective Date and at and as of the Closing Date Date, as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, seeking to (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking their respective Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its their respective Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including without limitation, the right to vote any Shares acquired from or owned by Seller or any of his its Affiliates on all matters properly presented to the Company’s stockholders 's shareholders or (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesShares.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulations, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(iclauses 7.1(b)(i) through 10.02(b)(iv)7.1(b)(iii) above.
(d) There All consents from third parties and authorizations or approvals from governmental authorities, required to consummate the transactions contemplated hereby and to preserve the Company's and the Subsidiaries' businesses intact, have been obtained, including without limitation, (i) the unconditioned approval of the Commissioner of Restrictive Trade Practices under the Restrictive Trade Practices Law of 1988; (ii) the approval of the Office of Chief Scientist of the Israeli Ministry of Industry and Commerce; (iii) the consent and approval of the Ministry of Defense; (iv) the consent of the Investment Center in connection with the Company's "approved enterprise certificates" set forth on Schedule 3.36; (v) any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall not have occurredexpired or been terminated; (vi) the consent of IFTRIC and (vii) the approval of the banks and any other third parties identified on Schedule 7.1(d), arisen in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or otherwise become known since the Effective Date any approval shall have been revoked.
(e) No event, occurrence, revelation fact, condition, change or development of a state of circumstances or facts whichshall have occurred that, individually or in the aggregate, has had constituted or would resulted or could reasonably be expected to have constitute or result in a Material Adverse Effect on the Company and the Subsidiaries taken as a whole.
(e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to BuyerEffect.
(f) Seller Each of the Company and Subsidiaries shall have delivered conduct its business in the ordinary course consistent with past practice and no strike or other organized labor actions with the Company's or the Subsidiaries' employees will prevent or interfere with the transfer of control or the conduct of the Company's and each Subsidiary's business in the ordinary course unless the same shall be resolved prior to Closing at no additional cost to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to or the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the CodeCompany.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Each Seller and the Company shall have performed in all material respects all of their respective his or her obligations hereunder required to be performed by it him or her on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company Sellers contained in this Agreement and of the Seller Entities contained in the Ancillary Agreements to which the Seller Entities are or are to be party and in any certificate or other writing delivered by a Seller Entity pursuant hereto or thereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by each Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Person before any Governmental Authority, Authority (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary of its Subsidiaries or of Buyer or any of its Affiliates, (ii) seeking their respective Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary of its Subsidiaries or of Buyer or any of its their respective Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesShares.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the purchase of the Shares, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i8.02(b)(i) through 10.02(b)(iv8.02(b)(iii).
(d) There Buyer shall not have occurredreceived payoff letters and other documentation, arisen or otherwise become known since all of which shall be in form and substance reasonably satisfactory to Buyer, evidencing the Effective Date any event, occurrence, revelation or development repayment of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company Credit Agreement and the Subsidiaries taken as a wholerelease of all Liens related thereto.
(e) Buyer shall have received all documents it may reasonably request relating obtained funds pursuant to the existence Commitment Letter or, if such funds are not available to Buyer, other funds on terms and conditions satisfactory to it in its sole and absolute discretion, sufficient to enable it to pay the cash portion of the Company Purchase Price and the Subsidiaries related fees and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyerexpenses.
(f) Seller Each Restructuring Document shall have been executed and delivered by each party thereto in the form previously delivered to Buyer a certificationBuyer, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies Restructuring Transactions shall have been consummated in accordance with the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 terms of the CodeRestructuring Documents.
(g) Seller Txxxxxxxx.xxx shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory delivered to Buyer the Termination and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Release Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to form attached as Exhibit B (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer “Termination and Seller as it is currently expected to be conducted after the ClosingRelease”).
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to shall be conditioned upon the satisfaction or waiver (in whole or in part) of each of the following further conditionsconditions concurrently with or prior to Closing:
(a) (i) Seller The Company and the Company Selling Holders shall have performed in all material respects all of their respective obligations hereunder required to be performed by it them on or prior to the Closing Date, (ii) the representations and warranties of Seller the Company and the Company Selling Holders contained in this Agreement (and in any certificate or other writing delivered by the Company and the Selling Holders pursuant hereto, disregarding all qualifications and exceptions contained therein for relating to materiality and or Material Adverse Effect) , shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as wholeDate, and (iii) Buyer shall have received a certificate signed by Seller an authorized Manager of the Company and the Selling Holders to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, restrain or prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking their Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its their Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the SharesPercentage Interests, including without limitation, the right to vote any Shares Percentage Interests acquired or owned by Seller Buyer or any of his its Affiliates on all matters properly presented to the Company’s stockholders Members, or (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesPercentage Interests.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv).
(d) There shall not have occurred, arisen or otherwise become known since the Effective Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a whole.
(e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Samples: Purchase Agreement (KFX Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective its obligations and covenants hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as wholetime, and (iii) Buyer shall have received a certificate signed by the Chief Executive Officer of Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted instituted, or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit prohibit, or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary Purchased Assets or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (ivii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesPurchased Assets.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order, or decree proposed, enacted, enforced, promulgated, issued issued, or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government, or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections clauses 10.02(b)(i) through 10.02(b)(iv)and 10.02(b)(ii) above.
(d) There Buyer shall not have occurredreceived an opinion of __Kaplan, arisen or otherwise become known since Gotbetter & Levinson___, counsel to Seller, dated the Effective Closing Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregateform annexed hereto. In rendering such opinion, has had such counsel may rely upon certificates of public officers, as to matters governed by the laws of jurisdictions other than [specify] or would the federal laws of the United States of America, upon opinions of counsel reasonably satisfactory to Buyer, and, as to matters of fact, upon certificates of officers of Seller, copies of which opinions and certificates shall be expected contemporaneously delivered to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeBuyer.
(e) Buyer Execution and delivery of other relevant agreements, including non-compete, employment agreements, trademark or software licenses, leases, clearing, service or administrative agreements, or other transition agreements.
(f) Seller shall have received all documents it may reasonably request relating Required Consents, Other Consents, Permits, and all consents, authorizations or approvals from the governmental agencies referred to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreementin Section 3.05, all in each case in form and substance reasonably satisfactory to Buyer.
(f) Seller , and no such consent, authorization, or approval shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Codebeen revoked.
(g) Seller shall have delivered duly executed an effective, irrevocable election under Section 338(h)(10) covenants not to sue from the holders of the Code not less than 85% in form and substance satisfactory to Buyer and Seller shall have delivered principal amount ox xhe Seller's liabilities in respect of all documents in connection therewith as the Buyer may reasonably requestoutstanding litigation.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Each Seller and the Company Entity shall have performed in all material respects all of their respective its obligations hereunder under the Transaction Documents and the MSA required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and Material Adverse Effect) shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions astime, in each case individually or and in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by the Vice President of Seller to the foregoing effect.
(b) There shall not be threatened in writing(with a reasonable likelihood of being commenced), instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates Subsidiaries of all or any material portion of the Purchased Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Subsidiaries or to compel Buyer or any of its Affiliates Subsidiaries to dispose of all or any material portion of the business or assets of the Company or any Subsidiary Purchased Assets or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders Subsidiaries or (ivii) seeking to require divestiture by Buyer or any of its Affiliates Subsidiaries of any Shares or any business or assets of Buyer or any of its AffiliatesPurchased Assets.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, other than the application of the waiting period provisions of the HSR Act to the purchase of the Purchased Assets, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv)and 10.02(b)(ii) above.
(d) There Each Seller Entity shall not have occurredreceived all Required Consents (or entered into alternative arrangements (other than with respects to leases of Real Property) as contemplated by Section 2.05) and all consents, arisen authorizations or otherwise become known since approvals from the Effective Date any eventgovernmental agencies referred to in Section 3.03 in each case in form and substance reasonably satisfactory to Buyer, occurrenceand no such consent, revelation authorization or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to approval shall have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholebeen revoked.
(e) Buyer shall have obtained an ALTA extended coverage form of owner’s or leasehold owner’s title insurance policies, or binders to issue the same, dated the Closing Date and in amounts satisfactory to Buyer insuring or committing to insure, at ordinary premium rates without any requirement for additional premiums, good and marketable title to the Real Property being transferred pursuant to the terms of this Agreement free and clear of any Liens, except for Permitted Liens.
(f) The Transitional Services Agreement and the License Agreement, in each case in form and substance satisfactory to Buyer in its reasonable discretion, shall have been entered into by Seller or one of its Subsidiaries, on the one hand, with Buyer or one of its Subsidiaries, on the other.
(g) Upon the prior written request of Buyer (exercisable in its sole discretion), a Network Rental Agreement in form and substance satisfactory to Buyer in its reasonable discretion shall have been entered into by Seller or one of its Subsidiaries, on the one hand, with Buyer or one of its Subsidiaries, on the other.
(h) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries each Seller Entity and the authority of each Seller Entity for this Agreementeach Transaction Document to which it is a party, all in form and substance reasonably satisfactory to Buyer.
(f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Magellan Health Services Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Each of the Sellers shall have performed all of its or his obligations hereunder required to be performed by it or him on or prior to the Closing Date, (ii) the representations and warranties of the Sellers contained in this Agreement and in any certificate or other writing delivered by the Sellers pursuant hereto (A) that are qualified by materiality or Material Adverse Effect shall be true at and as of the Closing Date as if made at and as of such date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such time, and (iii) Buyer shall have received a certificate signed by the Chief Executive Officer (the “CEO”), Managing Director or a director of each Seller and to the foregoing effect.
(b) The Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, (iii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as wholetime, and (iiiii) Buyer shall have received a certificate signed by Seller the CEO of the Company to the foregoing effect.
(bc) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Person before any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary of its Subsidiaries or of Buyer or any of its Affiliates, (ii) seeking their Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary of its Subsidiaries or of Buyer or any of its their Affiliates, (iiiii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller Buyer or any of his its Affiliates on all matters properly presented to the Company’s stockholders shareholders or (iviii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesShares.
(cd) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, Authority that, in the reasonable judgment of Buyer couldwould, directly or indirectly, reasonably result in any of the consequences referred to in Sections 10.02(b)(i9.02(c)(i) through 10.02(b)(iv9.02(c)(iii).
(de) There Buyer shall not have occurred, arisen or otherwise become known since received the Effective Date any event, occurrence, revelation or development resignation letters of a state all directors of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeCompany.
(ef) Buyer shall have received all documents it may reasonably request relating to the existence of each Seller, if applicable (except in the case of Xxxx Xxxxxxxx), the Company and the its Subsidiaries and the authority of each Seller (except in the case of Xxxx Xxxxxxxx) for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(fg) Seller Buyer shall have delivered received from each of the Sellers and the Executive Officers a Lock-Up Agreement duly executed by such Seller or Executive Officer, as applicable, which shall continue to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to be effective on the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and Buyer shall have received from all of the Michigan Lease Amendments shareholders of the Management Seller the Side Letter duly executed by such shareholders, which shall continue to be in full force and effecteffective on the Closing Date.
(i) Buyer shall be reasonably satisfied that no applicable regulator have received an opinion of Han Kun Law Offices, PRC counsel to the Company, dated the Closing Date, substantially in the countries listed on Schedule 10.02(iform attached as Exhibit F hereto.
(j) Buyer shall have objected or would be reasonably expected received an opinion of Xxxxxxx, Xxxx & Xxxxxxx, Cayman Islands counsel to object to (x) the ClosingCompany dated the Closing Date, (y) substantially in the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller form attached as it is currently expected to be conducted after the ClosingExhibit G hereto.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the The representations and warranties of the Seller and the Company contained Group set forth in this Agreement (disregarding all exceptions therein for materiality shall have been true and Material Adverse Effect) correct at and as of the date hereof and shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such time (or, in the case of representations and warranties that relate refer specifically to a specific an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date.
(b) The Seller Group shall have performed or complied with only such exceptions as, individually all obligations and covenants required by this Agreement to be performed or in complied with by the aggregate, have not had and would not reasonably be expected Seller Group at or prior to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and Closing.
(iiic) Buyer shall have received a certificate dated the Closing Date signed on behalf of each member of the Seller Group by Seller the President of such member to the foregoing effecteffect that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied (the “Seller Closing Certificate”).
(bd) There shall not have been no material adverse change in the Purchased Assets or the condition (financial or otherwise), operations, prospects or results of operations of any member of the Seller Group.
(e) No Action shall be pending or threatened in writing, instituted before any court or pending other Governmental Entity or before any action or proceeding by any Governmental Authority, other Person wherein an unfavorable Order would (i) seeking to restrain, prohibit or otherwise materially interfere with the prevent consummation of any of the transactions contemplated hereby by this Agreement or the Ancillary Agreements, (ii) affect adversely the right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer’s ownership or operation by Buyer (or any that of its Affiliates Subsidiaries or Affiliates) of all or any material portion of the business Purchased Assets, or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of Purchased Assets or all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or and assets of Buyer or any of and its AffiliatesSubsidiaries. No such Order shall be in effect.
(cf) There No Law shall not have been enacted or shall be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of transactions contemplated by this Agreement or the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in Ancillary Agreements which has any of the consequences referred to effects set forth in Sections 10.02(b)(iclauses (i) through 10.02(b)(iv(iii) in Section 8.2(e).
(dg) There The Seller Group shall not have occurred, arisen or otherwise become known since obtained the Effective Date any event, occurrence, revelation or development Consent of a state each Person whose Consent is required under the Assigned Contracts and shall have provided evidence of circumstances or facts which, individually or each such Consent in the aggregate, has had or would reasonably be expected form and substance satisfactory to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeBuyer.
(eh) Buyer shall have received all Authorizations (including any Environmental Permits) that are necessary for it to hold, own, use and enjoy the Purchased Assets.
(i) The Seller Group shall have delivered to Buyer all agreements and other documents it may reasonably request relating required to be delivered by the Seller Group to Buyer pursuant to Section 3.2 of this Agreement.
(j) Buyer shall have received a certificate of the Secretary of each member of the Seller Group dated the Closing Date and certifying:
(i) that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors and the stockholders of such member of the Seller Group in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; and
(ii) to the existence incumbency and specimen signature of each officer of such member of the Company Seller Group executing this Agreement and/or the Ancillary Agreements, and a certification by another officer of such member of the Subsidiaries Seller Group as to the incumbency and signature of the authority Secretary of such member of the Seller for this AgreementGroup.
(k) Buyer shall have received evidence in form and substance satisfactory to Buyer that all Liens with respect to the Purchased Assets have been released.
(l) Buyer shall have received the written opinion of WeirFoulds LLP, all dated the Closing Date, in form and substance reasonably satisfactory to Buyer.
(fm) Seller Buyer shall have delivered to Buyer a certification, signed under penalties of perjury completed and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be fully satisfied in full force its sole discretion with the results of its review of, and effect.
its other due diligence investigations with respect to, the Purchased Assets. Such review may include an analysis by Buyer or its representatives of (i) the results of any environmental assessment of the Property that Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(ideem appropriate and (ii) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation environmental and OSHA practices and procedures of the combined business of Buyer and Seller as it is currently expected to be conducted after the ClosingGroup.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditionsconditions on or before the Closing Date:
(a) (i) Each Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of each Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) in any certificate or other writing delivered by Seller pursuant hereto shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by the President and Chief Executive Officer, or equivalent officer if there is no President or Chief Executive Officer, of each Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, (i) domestic or foreign, seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business Purchased Assets or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(iSection 9.02(b) through 10.02(b)(iv)above.
(d) There Seller shall not have occurredreceived, arisen or otherwise become known since the Effective Date any eventobtained a waiver from Buyer pursuant to Section 4.10 of, occurrenceall Required Consents, revelation or development of a state of circumstances or facts whichin each case in form and substance reasonably satisfactory to Buyer, individually or in the aggregate, has had or would reasonably be expected to and no such Required Consent shall have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholebeen revoked.
(e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries each Seller and the authority of such Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Seller Xxxx Xxxxxxx shall have delivered executed a consulting agreement with Buyer and Xxxx Xxxxxx shall have executed an employment agreement with Buyer and Xxxxxx Xxxxxxx shall have executed an offer letter with Buyer, in each case in a form reasonably acceptable to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the CodeBuyer.
(g) Seller Buyer shall have executed received an effectiveopinion of Xxxxxx White Xxxxx Banker, irrevocable election under Section 338(h)(10) of the Code P.A., counsel to Sellers, in form and substance reasonably satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably requestBuyer, with respect to ATI Florida.
(h) The Stockholder Agreement and Within ten (10) days following the Michigan Lease Amendments Closing Date, Buyer shall be in full force and effect.
have received (i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected VAT records required to be conducted after the Closingdelivered under Article VII and (ii) all National Insurance and PAYE records fully completed and showing that payment are up to date.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the The representations and warranties of Seller set forth in Article III above (taken collectively and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effectindividually) shall be true and correct as of the Effective Date and in all material respects at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effectDate.
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation Each of the transactions contemplated hereby or the ownership or operation by Buyer or any Sellers shall have performed and complied with all of its Affiliates of covenants hereunder in all or any material portion of respects through the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesClosing.
(c) There shall not be any action takenNo action, suit, or proceeding shall be pending or threatened before any Applicable Law proposedcourt or quasi-judicial or administrative agency of any federal, enactedstate, enforcedlocal, promulgatedor foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, issued judgment, order, decree, ruling, or deemed applicable to the purchase charge would (i) prevent consummation of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred 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 Buyer to own the Membership Interests or ICR’s assets, or to operate ICR’s Business as conducted or as proposed to be conducted (and no such injunction, judgment, order, decree, ruling, or charge shall be in Sections 10.02(b)(i) through 10.02(b)(iveffect).
(d) There The Principals and Buyer shall not have occurredexecuted and delivered the Escrow Agreement attached hereto as Exhibit B, arisen or otherwise become known since and all additional transfer documents, if any, required to validly assign the Effective Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or Intellectual Property to Buyer in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholerecordable form.
(e) All required consents (other than those consents listed on Schedule 3.21 attached hereto which Buyer acknowledges shall not be obtained prior to Closing), waivers, authorizations and approvals of any governmental entity, and of any other person or entity, required under the Contracts, Licenses, or otherwise in connection with the execution, delivery and performance of this Agreement, the absence of which would have a material adverse change to ICR’s Business, or the cancellation or adverse change in terms of, or payments under, any Contract , shall have been duly obtained in form reasonably satisfactory to Buyer, shall be in full force and effect on the Closing Date and the original executed copies shall have been delivered to Buyer on or before the Closing Date.
(f) Buyer shall have received all documents it may entered into employment arrangements with Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxxx Xx. on terms and conditions reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory acceptable to Buyer.
(fg) Seller Each of the Principals shall have entered into a noncompetition agreement with Buyer substantially in the form of Exhibit C hereto (the “Noncompetition Agreements”).
(h) All certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.
(i) ICR shall have delivered to Buyer a certificationcertificate, dated the Closing Date and signed under penalties by both of perjury and dated not more than thirty (30) days prior the managers of ICR to the Closing Dateeffect that each of the conditions specified in Sections 5.1(a), that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2(b), (c) and confirms that the Seller is not a “foreign person” as defined (e) above have been satisfied in Section 1445 of the Codeall respects.
(gj) Seller The ICR International Purchase Agreement and all other documents and certificates contemplated thereby shall have been executed an effective, irrevocable election under Section 338(h)(10) and delivered by the parties thereto and all conditions to the closing of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby thereby shall have been satisfied or (z) waived to the operation satisfaction of the combined business of Buyer and Seller as it is currently expected to be conducted after the ClosingBuyer.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Salary. Com, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer MSA V to consummate pay for any Purchased Asset and MSA IV to take delivery of the Closing B737- 300 Aircraft MSN 24449 is subject to the satisfaction of the following further conditions:
(a) On each Delivery Date (i) Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, applicable Delivery Date and (ii) the representations and warranties of Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) in any certificate or other writing delivered by Seller pursuant hereto, shall be true and correct as of the Effective Date and at and as of the Closing Date true, as if made at and as of such time (or, in date. On the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in first Delivery Date the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) applicable Buyer shall have received a certificate signed by an executive officer of Seller and dated as of the first Delivery Date to the foregoing effect. On each subsequent Delivery Date, Seller shall be deemed to have delivered to the applicable Buyer a certificate signed by the same executive officer of Seller dated as of the subsequent Delivery Date and to identical effect.
(b) There On each Delivery Date there shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by either Buyer or any of its Affiliates of all any Aircraft or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel either Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders Aircraft or (ivii) seeking to require divestiture by either Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesAircraft.
(c) There On each Delivery Date there shall not be have been any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of the applicable Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(iclauses 8.02(b)(i) through 10.02(b)(iv)and 8.02(b)(ii) above.
(d) There On the first Delivery Date with respect to an Aircraft listed on Exhibit A-1, MSA V shall not have occurred, arisen or otherwise become known since the Effective Date any event, occurrence, revelation or development received an opinion of a state of circumstances corporate or facts whichthe general counsel to Seller, individually or dated the first Delivery Date, substantially in the aggregateform attached hereto as Exhibit C. On each subsequent Delivery Date, has had or would reasonably such counsel shall be expected deemed to have delivered a Material Adverse Effect on bring-down opinion to MSA V dated as of the Company subsequent Delivery Date and to identical effect. On the Subsidiaries taken Delivery Date with respect to the B737-300 Aircraft MSN 24449, MSA IV shall have received an opinion of a corporate or the general counsel to Seller, dated such Delivery Date, substantially in the form attached hereto as a whole.Exhibit C.
(e) Each Buyer and Seller shall have agreed upon the Initial Approved Budgets (as defined in the Servicing Agreement) as soon as is practicable but in any event no later than November 10, 1999.
(f) By the applicable Delivery Date Seller shall have received all Required Consents and all consents, authorizations or approvals from the governmental agencies referred to in Section 3.03 or 3.14 (in regards to Section 3.14 only with respect to the Aircraft to be delivered on such Delivery Date), in each case in form and substance reasonably satisfactory to the applicable Buyer, and no such consent, authorization or approval shall have been revoked.
(g) The applicable Buyer shall have received on the applicable Delivery Date a certificate setting forth the determination of an independent insurance advisor with respect to the applicable Aircraft satisfactory to such Buyer in its sole discretion and to the effect that the insurance policies or bonds relating to such Aircraft are of the type customarily carried by owners of similar Aircraft.
(h) On or prior to the applicable Delivery Date, the applicable Buyer shall have received a report on the physical inspection of the relevant Aircraft in form and substance satisfactory to such Buyer.
(i) On each Delivery Date any non-cash Security Deposits shall have been reissued in the name of the applicable Buyer or its designee or, failing such reissue shall have been otherwise transferred to such Buyer or its designee so as, in such Buyer's sole discretion, to enable such Buyer or such designee to realize the benefits conferred thereby.
(j) On each Delivery Date a Lease Novation shall have been entered into with respect to the relevant Aircraft (other than the B737-400 Aircraft MSN 26291 and X000-000 XX Xxxxxxxx XXX 00000 with respect to each of which a Lease shall have been entered into between MSA V or its designee and the applicable Lessee) by the applicable Buyer or its designee, Seller and the applicable Lessee and such agreement shall be in full force and effect and a fax thereof shall have been delivered to such Buyer along with copies of any other Lease Documents for the relevant Aircraft.
(k) On each Delivery Date the applicable Aircraft shall have been registered in the applicable state of registration reflecting, to the extent permitted under the laws of such state of registration, the applicable Buyer's or its designee's ownership thereof or such other action shall have been taken with respect to such registration and ownership as shall be satisfactory to such Buyer, provided, that such registration or other action need not be effected prior to such Delivery Date if such registration or other action may, upon the written advice of counsel in the applicable state of registration, be effected after such Delivery Date without any prejudice to any right of Buyer as an owner or lessor of the Aircraft.
(l) On each Delivery Date there shall be delivered to the applicable Buyer, (1) an opinion from counsel to such Buyer in the applicable state of registration and, if different, from counsel in the jurisdiction whose law is stated to govern in each of the following documents (which will be counsel to Seller in the case of California law), to the effect that the applicable Lease Documents and Lease Novation are legal, valid and binding under the applicable laws of such state of registration and jurisdiction; and (2) an opinion from counsel to such Buyer in the applicable state of registration to the effect that (i) such Buyer or its designee, as applicable shall be recognized as the owner of the applicable Aircraft under the laws of such jurisdiction; (ii) it is not necessary for such Buyer or its designee, as applicable, to qualify to do business in such jurisdiction as a result of ownership of such Aircraft to exercise remedies under the applicable Lease or otherwise; (iii) payments due under the applicable Lease are not subject to withholding or similar tax or, in the case of Leases where withholding tax applies in any relevant jurisdiction, the Lessee is obligated to pay and hold the lessor harmless from such withholding tax under the Lease Documents and the applicable Lease Novation; (iv) no filings or registrations other than those which have already been made or are in the process of being made and are referenced in such opinion are necessary to record or perfect such Buyer's (or, if applicable, the lessor's) interest in such Aircraft in such jurisdiction; and (v) upon the expiration or other valid termination of the Lease, and subject to compliance with the laws of such jurisdiction, the lessor would be entitled and able under the laws of such jurisdiction to receive redelivery of such Aircraft, repossess such Aircraft and export such Aircraft from such jurisdiction. All of the opinions required by this clause shall be at such Buyer's expense.
(m) On each Delivery Date at a time as close as practicable to the time of delivery of payment for such Aircraft by Buyer an executed xxxx of sale from Seller to the applicable Buyer and certified copies of each of the documents relating to Seller's title to the applicable Aircraft evidencing the chain of title from the Manufacturer to Seller shall have been received in a form reasonably satisfactory to such Buyer.
(n) On each Delivery Date the applicable Buyer shall have received originals or copies of certificates for the Aircraft being sold on such Delivery Date evidencing the insurance required to be maintained pursuant to the applicable Lease Documents and Lease Novation (which insurance shall name the owner of the Aircraft and each other Person required to be so named pursuant to the Lease Documents and Lease Novation as additional insureds and shall name the owner of the Aircraft as Loss Payee under the relevant policies), together with a letter of undertaking in terms reasonably acceptable to such Buyer issued by the brokers through whom the insurances of such Aircraft shall have been placed if such a letter is required to be provided to the lessor pursuant to the applicable Lease.
(o) On each Delivery Date, the applicable Buyer shall have received a copy certified by Seller of the provisions of the original manufacturer purchase agreement applicable to the relevant Aircraft and available for the benefit of such Buyer or its designee after delivery of the Aircraft pursuant to the applicable Assignment of Warranties.
(p) On each Delivery Date the Servicing Agreement shall be or remain a valid and binding obligation of Seller in full force and effect.
(q) All representations, warranties, indemnities (except the indemnity for Transfer Taxes provided in Section 5.04 hereof and the indemnity with respect to "bulk sales," "bulk transfer" or similar laws provided in Section 12.11 hereof) and undertakings of Seller hereunder are capable of being assigned by either Buyer to a special purpose securitization vehicle or vehicles.
(r) On each Delivery Date, MSA V shall have received, if applicable, the "Manufacturer Payment" for the relevant Aircraft as set forth opposite such Aircraft on Exhibit A-1.
(s) On each Delivery Date the applicable Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries Seller and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to such Buyer.
(ft) Seller On each of the first and the last Delivery Dates, the applicable Buyer shall have delivered to Buyer a certificationreceived an opinion of Seller's New York counsel, signed under penalties of perjury O'Melveny and Xxxxx LLP, dated not more than thirty (30) days prior to the Closing applicable Delivery Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator substantially in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller form attached hereto as it is currently expected to be conducted after the Closing.Exhibit D.
Appears in 1 contract
Samples: Asset Purchase Agreement (Morgan Stanley Aircraft Finance)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) shall be true and correct as of the Effective Date date hereof and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effect.
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv).
(d) There shall not have occurred, arisen or otherwise become known since the Effective Date date hereof any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a whole.
(e) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, Date and (ii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effect.time,
(b) There shall not have occurred and be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit continuing as of or otherwise materially interfere with arisen before the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv).
(d) There shall not have occurred, arisen or otherwise become known since the Effective Date Closing any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeEffect.
(ec) Seller shall have delivered to Buyer a certificate of Seller, executed by the President of Seller, that each of the conditions set forth in Section 11.02(a) and Section 11.02(b) has been satisfied.
(i) There shall not be threatened, instituted or pending any action or proceeding by any Person before any Governmental Authority, (A) seeking to restrain, prohibit or otherwise interfere with the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of Buyer or any of its Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the Purchased Assets or of Buyer or any of its Affiliates or (B) seeking to require divestiture by Buyer or any of its Affiliates of any Purchased Assets or any business or assets of Buyer or any of its Affiliates and (ii) there shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Purchased Assets, by any Governmental Authority that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in clauses (A) or (B) above.
(i) The Key Employee Arrangements shall be delivered to Buyer and shall be in full force and effect upon the Closing and none of the Key Employees shall have revoked his acceptance of employment with Buyer or otherwise communicated to Buyer his intention not to commence employment with Buyer or continue employment with Seller, as applicable, following the Closing Date, (ii) the Non-Compete Agreements shall be delivered to Buyer and shall be in full force and effect upon the Closing, and (iii) the Equityholder Support Agreements shall be delivered to Buyer and shall be in full force and effect upon the Closing.
(f) Buyer shall have received conducted any and all documents it may reasonably request relating confirmatory due diligence with respect to the existence Purchased Assets and the Business that it deems necessary or advisable, including an environmental audit (including testing, if desired) of the Company Purchased Assets (including the Real Property) and of any other property or assets now or previously owned, leased or operated by Seller, the results of which shall be satisfactory to Buyer in its sole discretion. Buyer and Seller acknowledge and agree that the condition set forth in this Section 11.02(f) shall be deemed satisfied unless Buyer provides Seller with written notice on or prior to February 15, 2014 that the results of its confirmatory due diligence with respect to the Purchased Assets and the Subsidiaries and Business has been unsatisfactory.
(g) Seller shall have received each Consent identified on Section 11.02(g) of the authority of Seller for this AgreementDisclosure Schedule, all in each case in form and substance reasonably satisfactory to Buyer, and no such Consent shall have been revoked.
(fh) Buyer shall have received, in form satisfactory to Buyer, Payout Letters and Lien Terminations evidencing payment at the Closing of the Closing Repaid Indebtedness, as well as evidence reasonably satisfactory to Buyer of the satisfaction at the Closing of all other accrued liabilities of Seller.
(i) On or before the Closing Date (i) Buyer shall have obtained ALTA extended coverage form of owner’s title insurance policies, or binders to issue the same, dated the Closing Date and in amounts satisfactory to Buyer insuring or committing to insure, at ordinary premium rates without any requirement for additional premiums, good and marketable title to the Owned Real Property being transferred pursuant to the terms of this Agreement free and clear of any Liens (each a “Buyer’s Title Insurance Policy”) and (ii) Seller shall have delivered to Buyer recent ALTA surveys of such Owned Real Property and “no change” affidavits sufficient for the applicable title insurance company to provide full survey coverage in each Buyer’s Title Insurance Policy.
(i) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) 30 days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
Code and (gii) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller CHI shall have delivered all documents to Buyer a certification, signed under penalties of perjury and dated not more than 30 days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that CHI is not a “foreign person” as defined in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation Section 1445 of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.Code..
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Each of CHIC and Seller and the Company shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of each of CHIC and Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) in any certificate or other writing delivered by CHIC or Seller pursuant hereto shall be true and correct as of the Effective Date and in all material respects at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate certificates signed by the President and Secretary of each of CHIC and Seller to the foregoing effect.
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary Purchased Assets or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (ivii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesPurchased Assets.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(iclauses 8.01(b)(i) through 10.02(b)(iv)and 8.01(b)(ii) above.
(d) There Buyer shall not have occurredreceived an opinion of Proskauer Rose LLP, arisen or otherwise become known since counsel to CHIC and Seller, dated the Effective Closing Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or substantially in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeform of Exhibit 8.01(d).
(e) CHIC and Seller shall have received all Required Consents in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(f) Buyer shall have received all documents it may reasonably request relating to the existence of the Company CHIC and the Subsidiaries Seller and the authority of CHIC and Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Seller shall have delivered to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Code.
(g) CHIC and Seller shall have executed an effectivesimultaneously herewith, irrevocable election under Section 338(h)(10) of the Code in form and substance forms satisfactory to Buyer Buyer, the Interim License Agreement, and Seller CHIC shall have delivered all documents executed simultaneously herewith, in connection therewith as forms satisfactory to Buyer, the Buyer may reasonably request.
(h) The Stockholder Agreement Outside Purchase Contract and the Michigan Lease Amendments shall be in full force and effectLetter Agreement.
(i) Buyer shall be reasonably satisfied that no applicable regulator in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective its obligations and covenants hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as wholetime, and (iii) Buyer shall have received a certificate signed by the Chief Executive Officer of Seller to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted instituted, or pending any action or proceeding by any Governmental AuthorityPerson before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit prohibit, or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary Purchased Assets or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (ivii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its AffiliatesPurchased Assets.
(c) There shall not be any action taken, or any Applicable Law statute, rule, regulation, injunction, order, or decree proposed, enacted, enforced, promulgated, issued issued, or deemed applicable to the purchase of the SharesPurchased Assets, by any Governmental Authoritycourt, government, or governmental authority or agency, domestic or foreign, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections clauses 10.02(b)(i) through 10.02(b)(iv)and 10.02(b)(ii) above.
(d) There Buyer shall not have occurredreceived an opinion of Kaplan, arisen or otherwise become known since Gotbetter & Levinson, Esqs., counsel to Sexxxx, dated the Effective Closing Date any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregateform annexed hereto (the "Seller's Opinion"). In rendering such opinion, has had such counsel may rely upon certificates of public officers, as to matters governed by the laws of jurisdictions other than New York and Delaware or would the federal laws of the United States of America, upon opinions of counsel reasonably satisfactory to Buyer, and, as to matters of fact, upon certificates of officers of Seller, copies of which opinions and certificates shall be expected contemporaneously delivered to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeBuyer.
(e) Execution and delivery of other relevant agreements, including non-compete, employment agreements, trademark or software licenses, leases, clearing, service or administrative agreements, or other transition agreements.
(f) Seller shall have received all Required Consents, Other Consents, Permits, and all consents, authorizations or approvals from the governmental agencies referred to in Section 3.05, in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization, or approval shall have been revoked.
(g) Seller shall have delivered duly executed Releases as required under Section 2.07 (a) (viii).
(h) Buyer shall have received, in all respects the Required Approvals for each facility or real property leased, or operated by Seller with respect to the Purchased Assets and any required state or municipal transfer form from the Seller. Such forms shall be satisfactory to Buyer in its sole discretion and shall not impose upon Buyer any obligations or liabilities to which Buyer shall not have consented in writing prior to the Closing.
(i) Buyer shall have received all documents it may reasonably request relating to the existence of the Company and the Subsidiaries Seller and the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
8. The parties hereto acknowledge and agree that for purposes of the Original Agreement and this Amendment, (fa) Seller shall have delivered to Buyer a certificationthe term "Agreement" means the Original Agreement, signed under penalties of perjury as amended by this Amendment, and dated not more than thirty (30b) days prior to the term "Closing" or "Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” " as defined in Section 1445 of the Code.
(g) Seller shall have executed an effective, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effect.
(i) Buyer shall be reasonably satisfied that no applicable regulator used in the countries listed on Schedule 10.02(i) shall have objected or would be reasonably expected to object to (x) Agreement means the Closing, (y) the transactions contemplated hereby or (z) the operation date of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closingthis Amendment.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company Group shall have performed in all material respects all of their respective its obligations hereunder required to be performed by it on or prior to the Closing Date, Date and (ii) the representations and warranties of the Seller and the Company Group contained in this Agreement and in any certificate or other writing delivered by Seller Group pursuant hereto (disregarding all exceptions therein for A) that are qualified by materiality and or Material Adverse Effect) Effect shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, and (B) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, time; and (iiiC) Buyer shall have received a certificate signed by the Chief Executive Officer (or where any member of the Seller Group does not have such officer, by the Chief Financial Officer or a director) of each member of Seller Group to the foregoing effect.
(b) There shall not be threatened in writingthreatened, instituted or pending any action or proceeding by any Person before any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the Group Company Assets, the Business or the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking Affiliates or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the Group Company Assets, the Business or of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (ivii) seeking to require divestiture by Buyer or any of its Affiliates of any Shares Group Company Assets, the Business or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the SharesGroup Company Assets, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i8.02(b)(i) through 10.02(b)(ivand 8.02(b)(ii).
(d) There shall not have occurredNo event, arisen or otherwise become known since the Effective Date any eventdevelopment, occurrence, revelation change, effect or development condition of a state any character shall have occurred following the date of circumstances or facts whichthis Agreement that, individually or in the aggregate, has had or would could reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a wholeEffect.
(e) Each of the parties to the Transaction Documents, other than Buyer or Buyer WFOE, shall have received all documents it may reasonably request relating executed and delivered such Transaction Documents to the existence of the Company and the Subsidiaries and the authority of Seller for this AgreementBuyer or Buyer WFOE, all in form and substance reasonably satisfactory to Buyeras applicable.
(f) Seller All transactions contemplated under the Restructuring Documents to be completed on or prior to August 31, 2013 shall have delivered been completed pursuant to and in accordance with the Restructuring Documents and Applicable Law, and the Seller Group shall have performed, in all material respects, all of its obligations required to be performed under the Restructuring Documents on or prior to August 31, 2013, and evidence thereof shall have been provided to Buyer a certification, signed under penalties of perjury and dated not more than thirty (30) days prior to the Closing Date, that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that the Seller is not a “foreign person” as defined in Section 1445 of the Codeits satisfaction.
(g) Seller All transactions contemplated under the Onshore Acquisition Agreements to be completed on or prior to August 31, 2013 shall have executed been completed pursuant to and in accordance with the Onshore Acquisition Agreements and Applicable Law, and the Seller Group shall have performed, in all material respects, all of its obligations required to be performed under the Onshore Acquisition Agreements on or prior to August 31, 2013, and evidence thereof shall have been provided to Buyer to its satisfaction.
(h) Buyer shall have received an effectiveopinion from Global Law Office, irrevocable election under Section 338(h)(10) of the Code in form and substance satisfactory to Buyer and Seller shall have delivered all documents in connection therewith as the Buyer may reasonably request.
(h) The Stockholder Agreement and the Michigan Lease Amendments shall be in full force and effectBuyer.
(i) Buyer shall have renewed the existing non-compete and non-solicitation agreement with Seller (which was amended and restated on September 10, 2009) (the “Existing Non-Compete Agreement”) or entered into a new non-compete and non-solicitation agreement with Seller on terms no less favorable to Buyer than those under the Existing Non-Compete Agreement.
(j) Each Transferred Employee contemplated under the Restructuring Documents and/or the Onshore Acquisition Agreements to be reasonably satisfied that no applicable regulator in transferred to the countries listed on Schedule 10.02(i) Group Companies and/or Buyer and/or its Affiliates at or prior to August 31, 2013 shall have objected or would be reasonably expected duly transferred pursuant to object and in accordance with the Restructuring Documents and/or the Onshore Acquisition Agreements, and evidence thereof shall have been provided to (x) the Closing, (y) the transactions contemplated hereby or (z) the operation of the combined business of Buyer and Seller as it is currently expected to be conducted after the Closingits satisfaction.
Appears in 1 contract
