Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in Section 3(a) above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date; (ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing; (iii) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and (iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Assi Inc), Stock Purchase Agreement (Jacmar Companies)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) 6.2.1 the representations and warranties set forth in Section 3(a) 3.1 and Section 4 above shall be true and correct in all material respects respects, at and as of the Initial date of this Agreement and the Closing Date or(except (x) to the extent such representations and warranties are specifically made as of a particular date, if applicablein which case such representations and warranties shall be true and correct as of such date, the Second Closing Dateand (y) for changes permitted by this Agreement);
(ii) 6.2.2 each Seller and the Sellers Company shall have performed and complied with all of their covenants hereunder through the Closing, except to the extent that such covenants are qualified by terms such as “material” and “Material Adverse Effect,” in which case each Seller and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) 6.2.3 no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling Order or charge would (A) affect adversely the right of the Buyer to own the Company Units and to control the Company, (B) affect adversely the right of the Company to own its assets and to operate its business, (C) prevent consummation of any of the transactions contemplated by this Agreement, or (BD) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling Order or charge shall be in effect), nor shall any Law or Order which would have any of the foregoing effects have been enacted or promulgated by any Governmental Authority;
6.2.4 no event, change or development shall exist or shall have occurred since the date of this Agreement that has had or is reasonably likely to have a Material Adverse Effect on the Company;
6.2.5 the Sellers and Company shall have procured all of the necessary Governmental Authority authorizations, consents, orders and approvals, except as set forth on Schedule 6.2.5;
6.2.6 the Sellers and the Company shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 6.2.1 through Section 6.2.5 is satisfied in all respects;
6.2.7 the Sellers shall have delivered to the Buyer a certified copy of the Company’s Certificate of Formation;
6.2.8 Mx. Xxx Xxxxxxxx shall have executed an employment agreement with the Buyer in form and substance as set forth in Exhibit C attached hereto (C) affect adversely the right “Employment Agreement”).
6.2.9 the Company shall provide written confirmation to the Buyer with respect to the retention of Mxx. Xxxxxx Xxxxxxxx as an employee of the Company.
6.2.10 each Seller and the Company shall have entered into a limited mutual release substantially in the form of Exhibit D attached hereto (the “Release of Claims”);
6.2.11 the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer, and dated as of the Closing Date;
6.2.12 each Seller shall have executed and delivered to the Buyer a Confidentiality and Non-Competition Agreement in the form of Exhibit F attached hereto (the “Non-Compete Agreement”);
6.2.13 the Board of Directors of the Buyer shall have authorized and approved this Agreement and the transactions contemplated hereby;
6.2.14 the Sellers shall have caused the Company to own obtain and deliver to the Target SharesBuyer a certificate of good standing of the Company from the State of Maryland, and a certificate from the Secretaries of State of each jurisdiction in which the Company owns or leases real property or otherwise does business evidencing the Company’s authorization to conduct business as a foreign company in such state, each dated not earlier than twenty (20) days prior to the Closing Date;
6.2.15 the Sellers shall have delivered to the Buyer original stock certificates representing the Company Units and irrevocable stock powers executed by the Seller transferring the Company Units to the Buyer;
6.2.16 the Sellers shall have delivered to the Buyer the original minute book of the Company;
6.2.17 the Sellers and Company shall have terminated all other Related Party Agreements and provided the Buyer with evidence of such terminations;
6.2.18 all consents, permits and approvals from parties to contracts with the Company or with the Sellers (a) that may be required in connection with the performance by the Company or any Seller of their respective obligations under this Agreement or the other Transaction Documents including without limitation those consents, permits and approvals which if not obtained would violate, conflict with or result in the breach of any of the material terms and conditions of, result in a material modification of the effect of, otherwise cause the termination of or give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any such contract, shall have been obtained and be in full force and effect, and the Buyer shall have been furnished with evidence reasonably satisfactory to it that such consents, permits and approvals have been obtained and are in full force and effect;
6.2.19 the approval of the managing member(s) and/or manager(s) of the Company (if required by applicable law) shall have been obtained, and the Buyer shall have been furnished with evidence reasonably satisfactory to it that such approval and any other approvals necessary for the consummation of the transactions contemplated by this Agreement and the other Transaction Documents have been obtained;
6.2.20 at the Closing, the Buyer shall received an affidavit from Seller, setting forth such Seller’s name, address and federal tax identification number and stating that such Seller is not a “foreign person” within the meaning of Section 1445 of the Code. If, on or before the Closing, the Buyer shall not have received such affidavit, the Buyer may withhold from the Closing Consideration at Closing to the Seller pursuant hereto such sums as are required to be withheld therefrom under Section 1445 of the Code;
6.2.21 all notices required by any Government Contract, or applicable Law with respect to any Government Contract, related to the transactions contemplated by this Agreement, including any notice to the Small Business Administration, shall have been properly given by the Sellers in a form previously approved by the Buyer; and
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All 6.2.22 all actions to be taken by the Sellers and the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer.
6.2.23 the Buyer shall have successfully consummated a financing transaction to allow for proceeds from such financing transaction to be used as the initial payment under terms of the Note to be made to the Sellers on the Closing Date.
6.2.24 the Sellers and the Company shall have delivered to the Buyer the Financial Statements as described in Section 4.7 hereto. The Buyer may waive any condition to its obligations specified in this Section 6(a) if it executes 6.2 by execution of a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have been approved by the unanimous written consent of the shareholders of Target;
(ii) Target and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above;
(iii) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(iiiv) the Sellers Target shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iiiv) no No action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or ;
(Cvi) affect adversely the right Target shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 6(a)(i)-(v) is satisfied in all respects;
(vii) the Buyer shall have received from counsel to own the Target Sharesan opinion in form and substance satisfactory addressed to the Buyer, and dated as of the Closing Date; and
(ivviii) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All all actions to be taken by the Sellers Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Merger Agreement (Second Cma Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section SECTION 3(a) and SECTION 4 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers Seller shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) Target (A) will have given (and the Seller will have caused Target to give) any notices to third parties, and Target will have used (and Seller will have caused Target to use) its reasonable best efforts to obtain third-party consents, that the Buyer may reasonably request in connection with the matters pertaining to Target disclosed or required to be disclosed in the Disclosure Schedule; (B) will have procured all necessary third party consents required to consummate this Agreement and the transactions contemplated hereby; and (C) will have taken any additional action (and the Seller will cause Target to take any additional action) that may be necessary, proper, or advisable in connection with any other notices to, filings with, and authorizations, consents, and approvals of governments, governmental agencies, and third parties that he, she or it may be required to give, make, or obtain to consummate this Agreement and the transactions contemplated hereby;
(iv) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling stipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect)consummation, or (C) affect adversely the right of the Buyer to own own, operate, or control the Surviving Corporation or its stock (and no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(v) the Target Sharesshall have delivered to the Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in SECTION 7(a)(i)-(iv) is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties and Target shall have received all other authorizations, consents and approvals of governments and governmental agencies set forth herein and in the Disclosure Schedule;
(vii) the Buyer and Target shall have received from Xxxxx X. Xxxxxxxx an executed employment agreement in the form and substance attached hereto as EXHIBIT B;
(viii) the Buyer shall have received from counsel to the Target an opinion with respect to the matters set forth in EXHIBIT C attached hereto, addressed to the Buyer and dated as of the Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director of Target (other than Seller) prior to the Closing;
(x) the Buyer shall be satisfied in its sole discretion with the results of its continuing legal, financial and business due diligence investigations of Target, all of which shall be final and completed to Buyer's satisfaction prior to Closing;
(xi) no material adverse change shall have occurred in Target's Business or its future prospects;
(xii) Seller shall have caused Target to cancel each outstanding phantom stock, deferred bonus or option plan, if any, and all outstanding bonuses, options, interests or rights thereunder, at no cost to the Buyer or Target except for the Seller;
(xiii) all liens and Security Interests securing debts of Target which have been paid in full prior to or at the Closing shall have been fully released of record to the satisfaction of the Buyer and all Uniform Commercial Code financing statements covering such debts shall have been terminated;
(xiv) no unsatisfied liens for the failure to pay Taxes of any nature whatsoever shall exist against Target, or against or in any way affecting any Target Share;
(xv) all deferred Taxes shall be assumed and/or discharged by Target;
(xvi) Target shall have caused all of Target's officers, directors and/or employees of Target to, have repaid in full all debts and other obligations such persons may owe, if any, owed to Target;
(xvii) the Buyer shall have received from Target the Financial Statements;
(xviii) all appropriate corporate and shareholder authorizations of Target shall have been obtained, including but not limited to the following: the holders of the issued and outstanding Target Common Stock shall have duly approved this Agreement and the Merger all in accordance with applicable law, the certificate of incorporation and bylaws of Target;
(xix) since December 31, 1998, Target shall have made no dividend, consulting or other payment to the Seller, except for normal payments to the Seller to cover its federal and state income tax obligations as calculated on a cash basis for income tax purposes, but not to exceed the accrued earnings generated for the period January 1, 1999 through the date of Closing, and to Seller for its employment salaries (not to exceed current compensation); provided, however, that no payment shall be made for any cash-to-accrual tax liability as a result of the transactions contemplated hereby;
(xx) except as set forth on the Disclosure Schedule, since December 31, 1998, Target shall not have transferred, conveyed, disposed of and/or sold any of material assets, except in the Ordinary Course of Business;
(xxi) except as set forth on the Disclosure Schedule, since December 31, 1998, Target, without the prior written consent of Buyer, shall not have made any capital expenditure (or series of related capital expenditures) either involving more than $50,000 individually or $100,000 in the aggregate, or outside the Ordinary Course of Business;
(xxii) the Buyer and Xxxxx X. Xxxxxxxx shall have delivered an executed copy of the Stock Escrow Agreement in the form and substance attached hereto as EXHIBIT D and Buyer shall have deposited the shares with the escrow agent;
(xxiii) Seller shall have obtained a tax opinion from Seller's counsel that the transactions contemplated herein will not result in any income Tax;
(xxiv) Buyer shall have received the consents from third parties to consummate the transaction, including X.X. Xxxxxxx; and
(ivxxv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Target shall have been no material adverse change in the financial conditioncompleted a tax free consolidation with The Enterprise Systems Group, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. Inc.; The Buyer may waive any condition specified in this Section 6(aSECTION 7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) 6.2.1 the representations and warranties set forth in Section 3(a) 3.1 and Section 4 above that are qualified as to materiality shall be true and correct, and those that are not so qualified shall be true and correct in all material respects respects, at and as of the Initial date of this Agreement and the Closing Date or(except (x) to the extent such representations and warranties are specifically made as of a particular date, if applicablein which case such representations and warranties shall be true and correct as of such date, the Second Closing Dateand (y) for changes permitted by this Agreement);
(ii) 6.2.2 the Sellers Seller and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing orClosing, if applicable, except to the Second extent that such covenants are qualified by terms such as “material” and “Material Adverse Effect,” in which case with respect to such covenants the Seller and the Company shall have performed and complied with such covenants hereunder in all respects through the Closing;
(iii) 6.2.3 no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling Order or charge would (A) affect adversely the right of the Buyer to own the Company Shares and to control the Company, (B) affect adversely the right of the Company to own its assets and to operate its business, (C) prevent consummation of any of the transactions contemplated by this Agreement, or (BD) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling Order or charge shall be in effect), nor shall any Law or (C) affect adversely the right Order which would have any of the Buyer to own the Target Shares; andforegoing effects have been enacted or promulgated by any Governmental Authority;
(iv) From 6.2.4 no event, change or development shall exist or shall have occurred since the date hereof of this Agreement that has had or is reasonably likely to have a Material Adverse Effect on the Company;
6.2.5 the Seller and Company shall have procured all of the necessary Governmental Authority authorizations, consents, orders and approvals;
6.2.6 the Seller and the Company shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 6.2.1 through Section 6.2.5 is satisfied in all respects;
6.2.7 the Initial Closing Date orBuyer shall have received letters of resignation from each of the directors of the Company;
6.2.8 each of Xxxx Xxxxxxxx and Xxxxx Xxxxxxx shall have entered into an Employment Agreement substantially in the form of Exhibit C attached hereto (the “Employment Agreement”);
6.2.9 the Seller and Xxxxxxx Xxxxx, if applicableon the one hand, and the Second Company, on the other hand, shall have entered into a limited mutual release substantially in the form of Exhibit D attached hereto (the “Release of Claims”);
6.2.10 the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer, and dated as of the Closing Date;
6.2.11 the Seller and Xxxxxxx Xxxxx shall have each executed and delivered to Buyer a five-year Confidentiality and Non-Competition Agreement in the form of Exhibit F;
6.2.12 the Seller shall deliver to Buyer such documentation that properly evidences the Company is not a lessee and/or guarantor and has no obligations with respect to the vehicle owned by the Seller, there as further described on Schedule 6.2.12.
6.2.13 the Seller shall have caused the Company to have no long term Indebtedness as of Closing and shall have provided Buyer a certificate to such effect;
6.2.14 the Seller shall have executed and delivered the Escrow Agreement;
6.2.15 the Seller shall have delivered to Buyer original stock certificates representing the Company Shares and irrevocable stock powers executed by Seller transferring the Company Shares to Buyer;
6.2.16 the Seller shall have delivered to Buyer the original corporate record book (minute book) of the Company;
6.2.17 the Seller and Company shall have paid the attorneys and accountants to the Seller and Company in full through Closing and shall have delivered to Buyer a certificate to such effect;
6.2.18 the Seller and Company shall have terminated all Related Party Agreements and provided Buyer with evidence of such terminations;
6.2.19 all consents, permits and approvals from parties to contracts with the Company or with the Seller that are set forth on Schedule 6.2.19 shall have been no material adverse change obtained and be in full force and effect, and the financial conditionBuyer shall have been furnished with evidence reasonably satisfactory to it that such consents, results permits and approvals have been obtained and are in full force and effect;
6.2.20 the approval of operationsthe Board of Directors of the Company (if required by applicable law) shall have been obtained, propertiesand the Buyer shall have been furnished with evidence reasonably satisfactory to it that such approval and any other approvals necessary for the consummation of the transactions contemplated by this Agreement and the other Transaction Documents have been obtained;
6.2.21 with respect to each Real Property Lease set forth on Schedule 4.12, business the Buyer shall have received any consent of the landlord required under such Real Property Lease in connection with the consummation of the transactions contemplated herein;
6.2.22 at the Closing, the Buyer shall received an affidavit from Seller, setting forth such Seller’s name, address and federal tax identification number and stating that Seller is not a “foreign person” within the meaning of Section 1445 of the Code. If, on or prospects before the Closing, the Buyer shall not have received such affidavit, the Purchaser may withhold from the Initial Payment at Closing to the Sellers pursuant hereto such sums as are required to be withheld therefrom under Section 1445 of Target. All the Code;
6.2.23 all actions to be taken by the Sellers Seller and the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition to its obligations specified in this Section 6(a) if it executes 6.2 by execution of a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;; 20
(ii) the Sellers Target shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and;
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Target shall have been no material adverse change delivered to the Buyer a certificate to the effect that each of the conditions specified above in the financial condition, results of operations, properties, business or prospects of Target. All Section 6(a)(i)-(iii) is satisfied in all respects;
(v) all actions to be taken by the Sellers Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will shall be reasonably satisfactory in form and substance to the Buyer;
(vi) the Buyer shall have completed a satisfactory due diligence investigation of the Target, acceptable to Buyer at its sole discretion; and
(vii) the Target shall have furnished audited financial statements prepared in accordance with GAAP to the Buyer as required by the Act. Additionally, the Target shall furnish its most recent fiscal quarter financial statements prepared in accordance with GAAP to the Buyer. The Buyer may waive any condition specified in this Section 6(a) 6 if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Merger Agreement (Nucleus Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing Acquisition is subject to the satisfaction or waiver by the Buyer of the following conditions:
(ia) the The representations and warranties of the Seller set forth in Section 3(a) above shall this Agreement will be true and correct in all material respects at as of the date of this Agreement and as of the Initial Closing Date or(except to the extent such representations and warranties speak as of another date, if applicablein which case such representations and warranties will be true and correct as of such other date), except where the Second Closing Date;failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Buyer will have received a certificate signed by the Seller to such effect.
(iib) The Seller and the Sellers Company will have performed all of the covenants required to be performed by it under this Agreement at or prior to the Closing, except where the failure to perform does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially adversely affect the ability of the Seller and the Company to consummate the Acquisition or perform its other obligations hereunder. The Buyer will have received a certificate signed by the Seller to such effect.
(c) The Buyer shall have performed completed its business, accounting and complied with legal due diligence review of the Company and the Business, its assets and liabilities, and the results thereof shall be reasonably satisfactory to the Buyer.
(d) The Buyer shall have obtained on terms and conditions satisfactory to it all of their covenants hereunder the financing it needs in all material respects through order to consummate the Initial Closing or, if applicable, transactions contemplated hereby and fund the Second working capital requirements of the Company after the Closing;.
(iiie) no There shall not have been any occurrence, event, incident, action, suit failure to act, or proceeding transaction since the date of the Interim Financial Statements, which has had or is reasonably likely to cause a Material Adverse Effect.
(f) All applicable waiting periods (and any extensions thereof) will have expired or otherwise been terminated, and the parties hereto will have received all other authorizations, consents and approvals of all Governmental Entities in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby.
(g) No temporary, preliminary or permanent restraining Order preventing the consummation of the Acquisition will be in effect.
(h) Each party, as appropriate, shall be pending have obtained any required consents, permits, licenses, approvals or threatened before any court or quasi-judicial or administrative agency notifications of any federalgovernmental or regulatory authorities, statelenders, local lessors, suppliers, customers or foreign jurisdiction other third parties for which the Buyer will assume responsibility for properly completing and any and all necessary forms required when applying for and securing any necessary transfers.
(i) The Seller shall have obtained releases of any liens, charges or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of encumbrances against any of the transactions contemplated assets of the Company, at the Seller’s expense.
(j) The Buyer shall have received such pay-off letters and releases relating to the indebtedness of the Company as it shall have requested and such pay-off letters shall be in form and substance satisfactory to it.
(k) The Buyer shall have received fully-executed employment and non-competition agreements with the Seller and Xxx Xxxxxxxx and Xxxxx Xxxxx (and with other key Company executives as reasonably requested by this Agreementthe Buyer; however, such other key Company executives shall not be approached for purposes hereunder until after the Closing Date and the Seller shall cooperate with the Buyer in such efforts), with such employment agreements having the same current insurance benefits and an annual compensation of $100,000 for each of Messrs. Xxxxxxxx and Xxxxx and a term of one (B1) cause any year (with an option for the Company to extend the period for two (2) additional years), in form and substance mutually satisfactory to the Buyer and the Seller and such key Company executives.
(l) The Buyer shall have received new leases for the Real Property, which shall be at market rates (but not less than $7,500 per month), have a term of five (5) years and be on a triple net basis.
(m) The Company shall have delivered evidence reasonably satisfactory to the Buyer of the Company’s corporate organization and proceedings and its existence in the jurisdiction in which it is incorporated, including evidence of such existence as of the Closing.
(n) The Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated by this Agreement to be rescinded following consummation (hereby and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely fund the right working capital requirements of the Company after the Closing. The Buyer shall keep the Seller reasonably informed of its efforts to own the Target Shares; andobtain such financing.
(ivo) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Buyer at Closing is subject to Buyer's satisfaction (compliance with which or the occurrence of which may be waived in writing in whole or in part by Buyer) on or before the Closing Date, of the following conditions; provided, the satisfaction or waiver of any of the conditions set forth in this Section shall in no way affect Buyer's rights to indemnification pursuant to Section 8 hereof or the satisfaction or waiver of any other condition precedent:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers Target shall have performed and complied with all of their its covenants hereunder in all material respects through which are to be performed or complied with by it prior to or on the Initial Closing or, if applicable, the Second ClosingDate;
(iii) the Target shall have procured all of the third party consents specified in Section 5(b) above;
(iv) each third party identified on Schedule 7(a)(iv) shall have entered into an Estoppel Certificate and Agreement regarding Acquired Assets in the possession of such third parties (as described in such Schedule), substantially in the form attached hereto as Exhibit 7(a)(iv).
(v) the board of directors of Target and the Target Stockholders shall have approved this Agreement in all material respects;
(vi) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect)consummation, or (Cc) affect adversely the right of the Buyer to own the Target Shares; andAcquired Assets or to operate the business of the Division.
(ivvii) From the date hereof through Target shall have delivered to the Initial Closing Date orBuyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(vi) is satisfied in all respects;
(viii) the Target shall have delivered to the Buyer a certified copy of the resolutions of the Board of Directors and the shareholders of the Target, if applicableauthorizing and approving the execution, delivery and performance of this Agreement (and any other agreement to be delivered by the Second Target in connection herewith) and the consummation of the transactions contemplated hereby;
(ix) the Buyer shall have received from counsel to the Target an opinion in form and substance as set forth in Exhibit 7(a)(x) attached hereto, addressed to the Buyer, and dated as of the Closing Date, there ;
(x) the Target shall have been no material adverse change delivered to the Buyer a fully executed Investment Representation Letter from Elan International Services Ltd., in the financial condition, results form attached hereto as Exhibit 7(a)(xi);
(xi) the Target and Buyer shall have entered into a mutually agreeable escrow agreement with a third party for the escrow of operations, properties, business or prospects the held back portion of Target. All the Purchase Price;
(xii) all actions to be taken by the Sellers Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any ; and
(xiii) no material adverse change in the financial condition specified or results of operation of the Division, or in the condition or value of the Acquired Assets, taken as a whole, shall have occurred between the date of this Section 6(a) if it executes a writing so stating at Agreement and the Closing Date (other than economic or prior to market conditions affecting the Initial Closing or, if applicable, the Second Closingenteral feeding device market generally).
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and
(iv) From from the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target.
(v) Buyer shall have received an opinion of counsel to the Sellers in form and substance reasonably acceptable to Buyer covering the matters set forth in Exhibit A attached hereto. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(ia) each of the representations and warranties set forth of Parent and the Seller contained in Section 3(a3.1 and Article 4 (i) above that are qualified as to materiality shall be true and correct in all respects and (ii) that are not so qualified shall be true and correct in all material respects at when made and as of the Initial Closing Date, in each case as though then made and as though the Closing Date orwas substituted for the date of this Agreement throughout such representations and warranties, if applicableexcept to the extent that any such representation or warranty relates to a specified date, the Second Closing Datein which case such representations and warranties shall be true and correct as of such date;
(iib) the Sellers Seller shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iiic) no actionstatute, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federalregulation, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling decree or charge would (A) prevent consummation order of any of governmental body shall be in effect that restrains or prohibits the transactions contemplated by this Agreement, hereby or that otherwise (Bi) would cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (ii) affects adversely the right of Buyer to own the Target Shares or operate the businesses of or control the Target and no such injunction, judgment, order, decree, ruling or charge shall be in effect), its Subsidiaries or (Ciii) affect affects adversely the right of the Buyer Target and its Subsidiaries to own their respective assets or control their respective businesses, nor shall there be pending or threatened any action or proceeding by or before any governmental body challenging the Target Shares; and
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results lawfulness of operations, properties, business or prospects of Target. All actions seeking to be taken by the Sellers in connection with consummation prevent any of the transactions contemplated hereby by this Agreement, seeking monetary or other relief by reason of the consummation of any of such transactions, or wherein an unfavorable injunction, judgment, ruling, decree or order would cause any of the (i)-(iii) above;
(d) no event, transaction, condition or change shall have occurred since the date of this Agreement that has had or would reasonably be expected to have a Material Adverse Effect;
(e) Buyer shall have received from Xxxxx Xxxx LLP, counsel for the Seller, the Target and all certificatesits Subsidiaries, opinionsan opinion with respect to the matters set forth in Exhibit C attached hereto, instruments which shall be addressed to Buyer and other documents required to effect Buyer’s lenders, dated as of the transactions contemplated hereby will be reasonably satisfactory Closing Date, and in form and substance reasonably satisfactory to Buyer;
(f) The Target shall have obtained releases of all Security Interests (other than any Permitted Encumbrances) relating to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to assets and properties of the Initial Closing or, if applicable, the Second Closing.Target;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 and Section 4 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers shall have Seller has performed and complied with all of their covenants hereunder in all material respects through as of the Initial Closing or, if applicable, the Second ClosingDate;
(iii) the Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above;
(iv) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, provincial, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunctionconsummation, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target SharesCompany Shares and to control the Company and its Subsidiaries, or (D) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) on or before the Closing Date, the Seller shall have caused the Company to repurchase or otherwise procure from the holders thereof all outstanding Class B Shares and Class C Shares of its Membership Interests, such that the Class A Shares held by the Seller comprise 100% of the Equity Interests of the Company;
(vi) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 6(a)(i)-(v) is satisfied in all respects;
(vii) the Buyer shall have received the written confirmation of the termination, effective as of the Closing Date, of each director and officer of the Company and its Subsidiaries other than those whom the Buyer shall have specified in writing at least five Business Days prior to the Closing; and
(ivviii) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All all actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The .
(ix) with respect to any Owned Real Property and Material Leased Property located outside the United States, each of the Company and its Subsidiaries, at Seller's cost and expense, shall provide the Buyer may waive any condition specified with an equivalent form of title assurance in this Section 6(a) if it executes a writing so stating at or prior accordance with local custom satisfactory to the Initial Closing or, if applicable, the Second Closing.Buyer for each parcel of such Owned Real Property and Material Leased Property; and
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Issuer Direct Corp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at and as of the Initial date hereof and at and as of the Closing Date or(except that representations and warranties that are made as of a specified date need be true and correct in all material respects only as of such date), if applicableexcept to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” in which case such representations and warranties (as so written, including the Second term “material” or “Material”) shall be true and correct in all respects at and as of the date hereof and at and as of the Closing DateDate (except that representations and warranties that are made as of a specified date need be true and correct in all respects only as of such date);
(ii) the Sellers Seller shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing orClosing, if applicableexcept to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the Second term “material” or “Material”) in all respects through the Closing;
(iii) no action, suit suit, or proceeding shall be pending or threatened before (or that could come before) any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before (or that could come before) any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would would: (A) prevent consummation of any of the transactions contemplated by this Agreement, ; (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation; (C) adversely affect the right of the Buyer to own the Acquired Assets or to conduct the Operations, as presently conducted; or (D) affect adversely the business, assets, properties, operation (financial or otherwise), or prospects of the Buyer with respect to its ownership of the Acquired Assets or operation of its business as a result of such acquisition (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and;
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Seller shall have been no material adverse change executed and delivered to the Buyer a certificate to the effect that each of the conditions specified in Section 7(a)(i)-(iii) above is satisfied in all respects;
(v) the financial conditionSeller shall have procured all of the Consents specified in Section 5(b) above;
(vi) the Seller shall have executed and delivered to the Buyer an Assignment and Bxxx of Sale in form and substance as set forth in Exhibit A attached hereto;
(vii) the Seller shall have executed and delivered to the Buyer a Warranty Deed in form and substance as set forth in Exhibit B attached hereto;
(viii) the Seller shall have executed and delivered to the Buyer the Intellectual Property License Agreement in form and substance as set forth in Exhibit C attached hereto, results and shall have delivered to Buyer the deliverables specified in Section 3.1 of operationssuch Intellectual Property License Agreement;
(ix) the Seller shall have delivered to the Buyer the Acquired Software Applications;
(x) the Buyer shall have employed a sufficient number of Offered Employees that it believes are necessary or appropriate to own, propertieslease and/or operate the Acquired Assets or to operate the Operations following the Closing, business or prospects as presently conducted, and such employees shall have entered into confidentiality agreements with the Buyer in form and substance reasonably satisfactory to the Buyer;
(xi) the Seller shall have executed and delivered to the Buyer a transition services agreement in substantially the form of Target. All Exhibit D attached hereto (the “Transition Services Agreement”);
(xii) all actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby by this Agreement and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will by this Agreement shall be reasonably satisfactory in form and substance to the Buyer;
(xiii) the Buyer shall have obtained, no later than 10 days prior to the Closing, a commitment for an ALTA Owner’s Title Insurance Policy 2006 Form or other form of policy acceptable to the Buyer for the Seller Owned Premises, issued by a title insurance company satisfactory to the Buyer (the “Title Company”), together with legible copies of all documents referenced therein (the “Title Commitments”);
(xiv) at the Closing, the Buyer shall have obtained title insurance policies from the Title Company (which may be in the form of a mxxx-up of a pro forma of the Title Commitments) in accordance with the Title Commitments, insuring the Buyer’s fee simple title to the Seller Owned Premises, as of the Closing Date (including all recorded appurtenant easements, insured as separate legal parcels), with gap coverage from the Seller through the date of recording, subject only to Permitted Encumbrances, in such amount as the Buyer determines to be the value of the Seller Owned Premises insured thereunder and which shall include the endorsements identified herein (the “Title Policies”); the Title Policies shall have the creditor’s rights exception deleted, and shall include the following endorsements or shall provide affirmative coverage against the following (to the extent available in the applicable jurisdiction, but regardless of whether any additional amount is charged for such endorsement), in form and substance reasonably acceptable to the Buyer: (A) extended coverage endorsement (insuring over the general or standard exceptions); (B) ALTA Form 3.1 zoning endorsement (with parking and loading docks), or if unavailable in the applicable jurisdiction, a satisfactory zoning letter from the local zoning authorities; (C) a survey accuracy endorsement (insuring that the Seller Owned Premises described therein is the real property shown on the Survey delivered with respect thereto and that such Survey is an accurate survey thereof); (D) access endorsement (insuring that the Seller Owned Premises described therein is adjacent to a public street and has direct and unencumbered pedestrian and vehicular access to such public street); (E) ALTA Form 9 owner’s comprehensive endorsement; (F) tax parcel number endorsement (insuring that the tax parcel number in the endorsement includes the Seller Owned Premises insured thereunder and no other real property); (G) if the Seller Owned Premises insured therein consists of one or more adjacent parcels, a contiguity endorsement (insuring that all of such parcels are contiguous to one another without any gaps or gores); (H) utilities endorsement (insuring the availability of utilities to the Seller Owned Premises); and (I) such other endorsements as reasonably requested by the Buyer; and the Seller shall pay all fees, costs and expenses with respect to the Title Commitments and Title Policies;
(xv) the Buyer shall have obtained, no later than 10 days prior to the Closing, a survey for the Seller Owned Premises, dated no earlier than the date of this Agreement, prepared by a surveyor licensed in the jurisdiction where the Seller Owned Premises is located, satisfactory to the Buyer, and conforming to 2011 ALTA/ACSM Minimum Detail Requirements for Land Title Surveys including Table A Items Nos. 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(b), 13, 14, 15, and 16, and such other standards as the Title Company and the Buyer require as a condition to the removal of any survey exceptions from the Title Policies, and certified to the Buyer and the Title Company, in a form and with a certification satisfactory to each of such parties (the “Surveys”); the Surveys shall not disclose any encroachment from or onto any of the Seller Owned Premises or any portion thereof or any other survey defect that has not been cured or insured over to the Buyer’s reasonable satisfaction prior to the Closing; and the Buyer shall have paid or committed to pay all fees, costs and expenses with respect to the Surveys;
(xvi) the Seller shall have executed and delivered to the Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under Treasury Regulations issued pursuant to Code §1445 stating that the Seller is not a “foreign person” as defined in Code §1445;
(xvii) no damage or destruction or other change has occurred with respect to the Seller Owned Premises or any portion thereof that, individually or in the aggregate, would materially impair the use or occupancy of such real property as currently used or occupied;
(xviii) the Seller shall have executed and delivered to the Buyer a lease agreement in substantially the form of Exhibit E attached hereto (the “Lease Agreement”);
(xix) the Buyer shall have obtained, and be satisfied in its sole discretion with, the results of such environmental assessment and such other investigations or assessments deemed necessary by the Buyer, in its sole discretion, conducted with respect to the Seller Owned Premises;
(xx) all Liens relating to the Acquired Assets shall have been released in full, and the Seller shall have delivered to the Buyer written evidence, in form satisfactory to the Buyer in its sole discretion, of the release of all such Liens; and
(xxi) the Seller shall have executed and delivered to the Buyer a certificate of the secretary or an assistant secretary of the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Buyer, as to: (i) no amendments to the certificate of incorporation (or other formation) of such Person since the date of this Agreement; (ii) the bylaws (or other organizational documents) of such Person; and (iii) any resolutions of the board of directors (or other authorizing body) (or a duly authorized committee thereof) of such Person relating to this Agreement and the transactions contemplated by this Agreement. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Silicon Graphics International Corp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of the Seller set forth in Section 3(a) above 3 shall be true and correct in all material respects at and as of the Initial Closing Date or, as if applicable, made at and as of the Second Closing Date, except for the effects of actions contemplated herein or permitted hereunder;
(ii) if the Sellers All Cash Alternative has not become applicable, the representations and warranties of the Seller set forth in Section 4 of the Asset Transfer Agreement shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except for the effects of actions contemplated herein or permitted hereunder or contemplated in or permitted under the Asset Transfer Agreement;
(iii) the Seller shall have performed and complied with all of their covenants hereunder in all material respects through with all of its covenants hereunder (and under the Initial Closing or, if Asset Transfer Agreement unless the All Cash Alternative has become applicable, ) that are to be performed or complied with prior to the Second Closing;
(iiiiv) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this AgreementAgreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable), (B) cause any of the transactions contemplated by this Agreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable) to be rescinded following consummation consummation, (C) affect materially and adversely the right of the Buyer to own the capital stock of DFVC and Holding Company and to control Holding Company and the Targets, (D) affect materially and adversely the right of Holding Company or DFVC to own the capital stock of Birds Eye Mexico owned by it or (E) affect materially and adversely the right of the Targets (taken as a whole) to own their assets and to operate their businesses (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or ;
(Cv) affect adversely the right Seller shall have delivered to the Buyer a certificate to the effect that each of the Buyer to own the Target Shares; andconditions specified above in Section 7(a)(i)-(iv) is satisfied;
(ivvi) From all applicable waiting periods (and any extensions thereof) under the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions Hart-Xxxxx-Xxxxxx Xxx with respect to be taken by the Sellers in connection with consummation of the transactions contemplated hereby by this Agreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable) shall have expired or otherwise been terminated and the Parties, Dean Xxxernational and the Targets shall have received all certificatesother material authorizations, opinionsconsents, instruments and other approvals of governments and governmental agencies referred to in Sections 3(a)(iii), 3(b)(iii) and 4(c) and in the sections of the Seller Disclosure Schedule and Buyer Disclosure Schedule corresponding thereto;
(vii) the Buyer shall have received from the Seller intellectual property transfer documents required in recordable form with respect to effect the transactions contemplated hereby will be reasonably satisfactory transfer of the Seller's Target-Related Intellectual Property;
(viii) the Buyer shall have received from the Seller a duly executed assignment document with respect to the Existing Birds Eye License Agreement;
(ix) the Buyer shall have received from the General Counsel of the Seller an opinion as to the respective matters set forth in form Exhibit D attached hereto, based on customary reliance and substance subject to customary qualifications and, insofar as such opinion relates to matters of Wisconsin law, subject to the assumption that Wisconsin law does not differ from Illinois law to any extent material to such opinion, addressed to the Buyer. The , and dated as of the Closing Date;
(x) the Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior shall have received from special counsel to Birds Eye Mexico an opinion as to the Initial respective matters set forth in Exhibit E attached hereto, based on customary reliance and subject to customary qualifications, addressed to the Buyer, and dated as of the Closing or, if applicable, the Second Closing.Date;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, Closing;
(ii) the Second ClosingCorporations shall have procured all of the third party consents required to be received;
(iii) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunctionconsummation, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares, or (D) affect adversely the right of the Corporations to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Sellers shall have delivered to the Buyer any and all corporate records, equipment and property belonging to the Corporation including but not limited to the corporate minute book and all bank checks and records; and
(ivv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All all actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(aParagraph 2(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at (except to the extent such representations and warranties speak as of an earlier date) when made and as of the Initial Closing Date or, if applicable, the Second Closing Date; provided, however, that for purposes of determining satisfaction of the condition contained in this Section 6(a)(i), (A) no effect shall be given to any exception in such representations relating to materiality, Material Adverse Change, Material Adverse Effect or Knowledge of Sellers and (B) such representations and warranties shall be deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, results in a Material Adverse Effect;
(ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) the Sellers shall have procured all of the third party consents specified in Section 5(b) above except those consents, the failure of which to obtain, would not have a Material Adverse Effect (it being understood and agreed that the failure to procure any consent under any agreement with Piper Aircraft shall not be deemed to have a Material Adverse Effect);
(iv) no action, suit suit, or proceeding shall be pending (or threatened by any governmental or administrative agency or authority) before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions matters contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect)consummation, or (C) create a Material Adverse Effect or materially and adversely affect adversely the right of the Buyer to own the Target Shares; andAcquired Assets or to operate the Business (and no such judgement, order, decree, ruling or change shall be in effect);
(ivv) From since the date hereof through the Initial Closing Date or, if applicable, the Second Closing Dateof this Agreement, there shall have been no material adverse change in the financial conditionMaterial Adverse Change in, results of operationsand no event, propertiesoccurrence or development that, business taken together with other events, occurrences and developments would have or prospects of Target. All actions would reasonably be expected to be taken by have a Material Adverse Effect;
(vi) the Sellers in connection with consummation shall have delivered to the Buyer a certificate to the effect that each of the transactions contemplated hereby conditions specified above in Sections 6(a)(i) to (v) is satisfied in all respects;
(vii) all applicable waiting periods (and any extensions thereof) under the Hart-Xxxxx-Xxxxxx Xxx shall have expired or otherwise been terminated without conditions or restrictions;
(viii) all certificates, opinionsinstruments, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer;
(ix) Green Tree shall have signed and delivered to Buyer the Transitional Services Agreement in the form and substance reasonably satisfactory to Buyer;
(x) the Buyer shall have signed and delivered to the Sellers the Sub-servicing Agreement in the form and substance as set forth in Exhibit A; and
(xi) the Master Repurchase Agreement shall have been terminated without any cost, Liability or risk to Buyer (including any cost of recording the transfer of title, if necessary). The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at as of the date of this Agreement and as of the Initial Closing Date orwith the same effect as though made on and as of the Closing Date, except to the extent such representations and warranties speak as of a specific date and except to the extent the breaches of all the representations and warranties, if applicableany (excluding, for this purpose, any qualifications as to materiality therein or in the Second Closing DateCompany Disclosure Schedule), in the aggregate, do not have a Material Adverse Effect;
(ii) the Sellers Seller shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing orexcept to the extent the breaches of all the covenants, if applicableany (excluding for this purpose, any qualifications as to materiality therein), in the Second Closingaggregate, do not have a Material Adverse Effect;
(iii) the Seller, the Division and the Division Subsidiaries shall have procured all of the Material Consents;
(iv) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge is reasonably likely to be successful that would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunctionconsummation, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target SharesAcquired Assets, to operate the former businesses of the Division, and to control the Division Subsidiaries, or (D) affect adversely the right of any of the Division Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(iv) is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act and any applicable foreign antitrust notification shall have expired or otherwise been terminated and the Seller, the Division Subsidiaries, and the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(c) and Section 4(c) above;
(vii) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit F attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) the Seller shall and the Seller shall cause each of the Division and the Division Subsidiaries to deliver to the Buyer a non-foreign affidavit dated as of the Closing Date and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code so that the Buyer is exempt from withholding any portion of the Purchase Price thereunder (the "FIRPTA Affidavit");
(ix) there has been no Material Adverse Effect; and
(ivx) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Buyer shall have been no material adverse change in received from Seller a copy of, and shall be entitled to rely upon, an opinion of Delaware counsel to the financial conditionSeller addressed to the Seller, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the Buyer, regarding the applicability of Section 271 of the Delaware General Corporation Law to the BuyerTransaction. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Roxio Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction (or waiver in writing by the Buyer) of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 and Section 4 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date, except that any such representations and warranties limited by a materiality qualifier or by reference to Material Adverse Effect shall be true and correct in all respects;
(ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit or proceeding Action shall be pending or threatened against BST, We Sell or the Sellers before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this AgreementAgreement and the Related Agreements, (B) cause any of the transactions contemplated by this Agreement and the Related Agreements to be rescinded following consummation (and no such injunctionconsummation, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; andShares and BST to own the We Sell Interests, or (D) affect adversely the right of BST or the Buyer to own (indirectly through BST and We Sell) We Sell’s assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iii) the Shares shall be owned by the Sellers as set forth in Section 3(d) of the Disclosure Schedule as of the Closing Date and the We Sell Interests shall be owned by BST;
(iv) From the date hereof through Sellers shall have executed and delivered to the Initial Closing Date or, if applicableBuyer certificates representing the Shares endorsed in blank;
(v) each of the Sellers shall have entered into an Employment Agreement, the Second Closing Date, there shall form of which is annexed hereto as Exhibit A;
(vi) the relevant parties have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes entered into a writing so stating at or prior to the Initial Closing or, if applicableManagement Agreement, the Second Closing.form of which is annexed as Exhibit B;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at as of the date of this Agreement and as of the Initial Closing Date orwith the same effect as though made on and as of the Closing Date, except to the extent such representations and warranties speak as of a specific date and except to the extent the breaches of all the representations and warranties, if applicableany (excluding, for this purpose, any qualifications as to materiality therein or in the Second Closing DateCompany Disclosure Schedule), in the aggregate, do not have a Material Adverse Effect;
(ii) the Sellers Seller shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing orexcept to the extent the breaches of all the covenants, if applicableany (excluding for this purpose, any qualifications as to materiality therein), in the Second Closingaggregate, do not have a Material Adverse Effect;
(iii) the Seller, the Division and the Division Subsidiaries shall have procured all of the Material Consents;
(iv) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge is reasonably likely to be successful that would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunctionconsummation, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target SharesAcquired Assets, to operate the former businesses of the Division, and to control the Division Subsidiaries, or (D) affect adversely the right of any of the Division Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(iv) is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act and any applicable foreign antitrust notification shall have expired or otherwise been terminated and the Seller, the Division Subsidiaries, and the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(c) and Section 4(c) above;
(vii) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit F attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) the Seller shall and the Seller shall cause each of the Division and the Division Subsidiaries to deliver to the Buyer a non-foreign affidavit dated as of the Closing Date and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code so that the Buyer is exempt from withholding any portion of the Purchase Price thereunder (the “FIRPTA Affidavit”);
(ix) there has been no Material Adverse Effect; and
(ivx) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Buyer shall have been no material adverse change in received from Seller a copy of, and shall be entitled to rely upon, an opinion of Delaware counsel to the financial conditionSeller addressed to the Seller, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the Buyer, regarding the applicability of Section 271 of the Delaware General Corporation Law to the BuyerTransaction. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the The representations and warranties set forth in Section 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers The Seller shall have performed and complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no the CP Entities shall have procured all of the third party consents specified in Section 5(b) above;
(iv) No action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) affect adversely the right of the Buyer to own Shares and to control the CP Entities, or (D) affect adversely the right of any CP Entity to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or ;
(Cv) affect adversely The Seller shall have delivered to the right Buyer a certificate to the effect that each of the Buyer to own the Target Shares; andconditions specified above in Section 7(a)(i)-(iv) is satisfied in all respects;
(ivvi) From The Buyer shall have received from counsel to the date hereof through Seller an opinion in form and substance as set forth in Exhibit B attached hereto, addressed to the Initial Closing Date orBuyer, if applicable, and dated as of the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. ;
(vii) All actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing Acquisition is subject to the satisfaction or waiver by the Buyer of the following conditions:
(ia) the The representations and warranties of the Seller set forth in Section 3(a) above shall this Agreement will be true and correct in all material respects at as of the date of this Agreement and as of the Initial Closing Date or(except to the extent such representations and warranties speak as of another date, if applicablein which case such representations and warranties will be true and correct as of such other date), except where the Second Closing Date;failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Buyer will have received a certificate signed by the Seller to such effect.
(b) Each of the Seller and the Company will have performed all of the covenants required to be performed by it under this Agreement at or prior to the Closing, except where the failure to perform does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially adversely affect the ability of each of the Seller and the Company to consummate the Acquisition or perform its other obligations hereunder. The Buyer will have received a certificate signed by the Seller to such effect.
(c) The Buyer shall have completed its legal due diligence review of the Company and the Business, its assets and liabilities, and the results thereof shall be reasonably satisfactory to the Buyer.
(d) There shall not have been any occurrence, event, incident, action, failure to act, or transaction since the date of the Interim Financial Statements which has had or is reasonably likely to cause a Material Adverse Effect.
(e) All applicable waiting periods (and any extensions thereof) will have expired or otherwise been terminated, and the parties hereto will have received all other authorizations, consents and approvals of all Governmental Entities in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby.
(f) No temporary, preliminary or permanent restraining Order preventing the consummation of the Acquisition will be in effect.
(g) Each party, as appropriate, shall have obtained any required consents, permits, licenses, approvals or notifications of any lenders, lessors, suppliers, customers or other third parties for which the Buyer will assume responsibility for properly completing any and all necessary forms required when applying for and securing any necessary transfers.
(h) The Seller shall have (i) obtained releases of any liens or (ii) a payoff letter confirming the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through payoff due from Company at Closing reasonably acceptable to the Initial Closing orBuyer, if applicable, the Second Closing;
(iii) no action, suit regarding charges or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of encumbrances against any of the transactions contemplated by this Agreement, (B) cause any assets of the transactions contemplated by this Agreement Company, at the Seller’s expense.
(i) The Buyer shall have received such pay-off letters and releases relating to be rescinded following consummation (the indebtedness described on Section 4.3 of the Disclosure Schedule as it shall have requested and no such injunction, judgment, order, decree, ruling or charge pay-off letters shall be in effect), or form and substance reasonably satisfactory to it.
(Cj) affect adversely The Company and the right Seller shall have entered into a strategic advisor consulting agreement in the form set forth as Exhibit A to this Agreement (the “Consulting Agreement”) for a term of two years that includes annual compensation of $40,000.
(k) Company employees identified on Section 7.1 of the Buyer Disclosure Schedule shall have entered into non-competition and non-solicitation agreements in form and substance satisfactory to own the Target Shares; andBuyer.
(ivl) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there The Company shall have been no material adverse change delivered evidence reasonably satisfactory to the Buyer of the Company’s corporate organization and proceedings and its existence in the financial conditionjurisdiction in which it is incorporated, results including evidence of operations, properties, business or prospects such existence as of Target. the Closing.
(m) All actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Victory Oilfield Tech, Inc.)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the all representations and warranties of the Sellers and the Company set forth in Section 3(a) above this Agreement shall be have been true and correct in all material respects at on the date hereof and on and as of the Initial Closing Date or, if applicable, with the Second same force and effect as though made on and as of the Closing Date, except to the extent that any failure to be so true and correct has not had or would not have, individually or in the aggregate, a Material Adverse Effect (without the duplication of the effect of any standard of materiality specified in any such representation or warranty);
(ii) the Sellers shall have performed and complied with all of their covenants hereunder in all material respects through all obligations and agreements and complied in all material respects with all covenants and conditions contained in this Agreement to be performed or complied with by it at or prior to the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit or proceeding there shall not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction by or before any arbitrator wherein an unfavorable governmental agency, tribunal, commission or court any action or proceeding seeking to restrain, enjoin, prohibit or invalidate the consummation of the transactions contemplated by this Agreement;
(iv) there shall not be any statute, rule, regulation, injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and;
(ivv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no not be any material adverse change in the Company's Business, financial condition, results prospects, projections, assets or operations since February 29, 2004;
(vi) since the date hereof, the Company shall not have suffered any loss on account of operationsfire, propertiesflood, business accident, strike or prospects other calamity which has a Material Adverse Effect, whether or not such loss shall have been covered by insurance;
(vii) each Seller and the Chief Executive Officer or President of Targetthe Company shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 7(a)(i)-(vi) is satisfied in all respects and that, subject to the Disclosure Schedule, if any, all representations and warranties of each Seller or the Company, as the case may be, set forth in this Agreement are true and correct in all respects on the Closing Date with the same force and effect as though made on and as of the Closing Date;
(viii) the Sellers shall not have taken a distribution from the Company other than the distribution set forth on Section 4(k)(ii) of the Disclosure Schedule as reserved on the Company's February 29, 2004 balance sheet;
(ix) the Sellers shall have delivered to the Buyer a good standing certificate and certified charter documents of the Company, each of recent date, from the appropriate governmental agency in the jurisdiction in which the Company is organized and a good standing certificate for the Company of recent date from each jurisdiction in which the Company is qualified to do business;
(x) the Company shall have entered into a lease with Gestion Lafrenaie Inc. for the premises located at 8140 Lafrenaie, St. Leonard, Quebec, Montreal, Canada, HIP2A9, in the form attached as Exxxxxx B; ---------
(xi) each of the Company's existing directors and officers shall have resigned and the Company shall have received a release from each such director and officer reasonably satisfactory in form and substance to the Buyer;
(xii) the Company shall have entered into employment agreements with each of Daniel Molina and J. Mourain, for periods of 24 and 39 months respecxxxxxx, xx xxe forx xxxxxxxx as Exhibits C and C-1, and a consulting agreement with Jean-Louis Mourain for a period of 24 months in the form attached as Xxxxxxx X, each such agreement to contain customary provisions relating to non-competition and non-solicitation of customers and employees, and such agreements shall be in full force and effect except to the extent that the failure of any such agreement to be in full force and effect is attributable to the death of such individual;
(xiii) all indebtedness of the Company (for borrowed money) shall have been extinguished to the Buyer's reasonable satisfaction, and the Buyer shall have been provided with a payoff letter from each such financial institution;
(xiv) in connection with the repayment of all indebtedness, the Sellers shall deliver to Buyer termination statements from such applicable jurisdiction reflecting the release, by all secured lenders to the Company, of such Security Interest in the assets of the Company;
(xv) the Sellers shall have furnished to Buyer on the Closing Date, an opinion of their counsel, addressed to Buyer, substantially in the form of Exhibit E hereto;
(xvi) the Sellers shall have obtained all of the consents, authorizations, orders or approvals required in order to execute and deliver this Agreement and to perform their obligations hereunder (including the consent and approval of all governmental bodies, lenders, lessors and other third parties) and all actions, proceedings, instruments and documents reasonably deemed necessary or appropriate by Buyer and its counsel to effectuate this Agreement and the consummation of the transactions contemplated hereby, or incidental thereto, shall have been obtained;
(xvii) all requisite notice periods under any applicable governmental law, rule or regulation shall have expired;
(xviii) the Company and Bombardier shall have successfully executed and delivered to the others, an agreement relating to the supply of machined components and assemblies in support of Bombardier's various aircraft programs in form and substance satisfactory to the Buyer;
(xix) Each of the Sellers agree to execute, as of the Closing Date, a Certification to the Chief Executive Officer and Chief Financial Officer of RTI, substantially in the form of Exhibit F hereto, as may be required by certain other officers and employees of RTI, in connection with the completion and preparation of RTI's periodic reporting. All Such Certifications shall be true and correct in all material respects; and
(xx) all actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required or reasonably necessary to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rti International Metals Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of the Seller set forth in Section 3(a) above 3 shall be true and correct in all material respects at and as of the Initial Closing Date or, as if applicable, made at and as of the Second Closing Date, except for the effects of actions contemplated herein or permitted hereunder;
(ii) if the Sellers All Cash Alternative has not become applicable, the representations and warranties of the Seller set forth in Section 4 of the Asset Transfer Agreement shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except for the effects of actions contemplated herein or permitted hereunder or contemplated in or permitted under the Asset Transfer Agreement;
(iii) the Seller shall have performed and complied with all of their covenants hereunder in all material respects through with all of its covenants hereunder (and under the Initial Closing or, if Asset Transfer Agreement unless the All Cash Alternative has become applicable, ) that are to be performed or complied with prior to the Second Closing;
(iiiiv) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this AgreementAgreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable), (B) cause any of the transactions contemplated by this Agreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable) to be rescinded following consummation consummation, (C) affect materially and adversely the right of the Buyer to own the capital stock of DFVC and Holding Company and to control Holding Company and the Targets, (D) affect materially and adversely the right of Holding Company or DFVC to own the capital stock of Birds Eye Mexico owned by it or (E) affect materially and adversely the right of the Targets (taken as a whole) to own their assets and to operate their businesses (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or ;
(Cv) affect adversely the right Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(iv) is satisfied;
(vi) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act with respect to the transactions contemplated by this Agreement (excluding the transfer of the Aseptic Business to the Seller if the All Cash Alternative has become applicable) shall have expired or otherwise been terminated and the Parties, Xxxx International and the Targets shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in Sections 3(a)(iii), 3(b)(iii) and 4(c) and in the sections of the Seller Disclosure Schedule and Buyer Disclosure Schedule corresponding thereto;
(vii) the Buyer shall have received from the Seller intellectual property transfer documents in recordable form with respect to own the Target Sharestransfer of the Seller's Target-Related Intellectual Property;
(viii) the Buyer shall have received from the Seller a duly executed assignment document with respect to the Existing Birds Eye License Agreement;
(ix) the Buyer shall have received from the General Counsel of the Seller an opinion as to the respective matters set forth in Exhibit D attached hereto, based on customary reliance and subject to customary qualifications and, insofar as such opinion relates to matters of Wisconsin law, subject to the assumption that Wisconsin law does not differ from Illinois law to any extent material to such opinion, addressed to the Buyer, and dated as of the Closing Date;
(x) the Buyer shall have received from special counsel to Birds Eye Mexico an opinion as to the respective matters set forth in Exhibit E attached hereto, based on customary reliance and subject to customary qualifications, addressed to the Buyer, and dated as of the Closing Date;
(xi) the Buyer shall have received from each person who is, immediately prior to the Closing, a director or officer of Holding Company or either of the Targets and who has been identified to the Seller by the Buyer in writing at least 20 days prior to the Closing as being subject to this condition, his written resignation, effective as of the Closing, from each position as a director or officer of each of the Targets; and
(ivxii) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All all actions to be taken by the Sellers Seller, Xxxx International, Holding Company and the Targets in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will shall be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a7(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing Acquisition is subject to the satisfaction or waiver by the Buyer of the following conditions:
(ia) the The representations and warranties of the Seller set forth in Section 3(a) above shall this Agreement will be true and correct in all material respects at as of the date of this Agreement and as of the Initial Closing Date or(except to the extent such representations and warranties speak as of another date, if applicablein which case such representations and warranties will be true and correct as of such other date), except where the Second failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Buyer will have received a certificate signed by the Seller to such effect.
(b) The Seller and the Company will have performed all of the covenants required to be performed by it under this Agreement at or prior to the Closing, except where the failure to perform does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially adversely affect the ability of the Seller and the Company to consummate the Acquisition or perform its other obligations hereunder. The Buyer will have received a certificate signed by the Seller to such effect.
(c) The Buyer shall have completed its business, accounting and legal due diligence review of the Company and the Business, its assets and liabilities, and the results thereof shall be reasonably satisfactory to the Buyer.
(d) There shall not have been any occurrence, event, incident, action, failure to act, or transaction since the date of the Interim Financial Statements which has had or is reasonably likely to cause a Material Adverse Effect.
(e) All applicable waiting periods (and any extensions thereof) will have expired or otherwise been terminated, and the parties hereto will have received all other authorizations, consents and approvals of all Governmental Entities in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby.
(f) No temporary, preliminary or permanent restraining Order preventing the consummation of the Acquisition will be in effect.
(g) Each party, as appropriate, shall have obtained any required consents, permits, licenses, approvals or notifications of any lenders, lessors, suppliers, customers or other third parties for which the Buyer will assume responsibility for properly completing any and all necessary forms required when applying for and securing any necessary transfers.
(h) The Seller shall have obtained releases of any liens, charges or encumbrances against any of the assets of the Company, at the Seller’s expense.
(i) The Buyer shall have received such pay-off letters and releases relating to the indebtedness as it shall have requested and such pay-off letters shall be in form and substance satisfactory to it.
(j) The Buyer shall have received from counsel to the Seller an opinion in form and substance reasonably satisfactory to the Buyer, addressed to the Buyer and dated as of the Closing Date;.
(iik) The Buyer shall have received fully-executed employment and non-competition agreements with key Company executives (including a part-time consulting or employment agreement with the Seller) as reasonably requested by the Buyer.
(l) The Company shall have delivered evidence reasonably satisfactory to the Buyer of the Company’s corporate organization and proceedings and its existence in the jurisdiction in which it is incorporated, including evidence of such existence as of the Closing.
(m) The Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and fund the working capital requirements of the Company after the Closing.
(n) The Real Estate Sellers shall have performed and complied with transferred to the Buyer all of their covenants the owned real property described in Section 4.10(a)(i) of the Disclosure Schedule at no cost in addition to the purchase price payable hereunder in all material respects through the Initial Closing or, if applicablealternatively, the Second Closing;owners of the Real Estate Sellers shall have transferred ownership of the Real Estate Sellers to the Buyer at no cost in addition to the purchase price payable hereunder.
(iiio) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions to be taken by the Sellers Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) ss.3 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers Target shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and;
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there Target shall have been no material adverse change delivered to the Buyer a certificate to the effect that each of the conditions specified above in the financial condition, results of operations, properties, business or prospects of Target. All ss.6(a)(i)-(iii) is satisfied in all respects;
(v) [Deleted]
(vi) [Deleted]
(vii) [Deleted]
(viii) all actions to be taken by the Sellers Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will shall be reasonably satisfactory in form and substance to the Buyer.
(ix) The Buyer shall have completed a satisfactory due diligence investigation of the Target, acceptable to Buyer at its sole discretion..
(x) the Target shall have furnished audited financial statements prepared in accordance with generally accepted accounting principles (GAAP) to the Buyer as required by the Act. Additionally, the target shall furnish its most recent fiscal quarter financial statements prepared in accordance with GAAP to the Buyer. The Buyer may waive any condition specified in this Section 6(a) ss.6 if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Merger Agreement (Nucleus Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed contemplated by it in connection with the Initial Closing or, if applicable, the Second Closing this Agreement is subject to the satisfaction (or waiver by the Buyer in its sole discretion) of the following further conditions:
(ia) All Authorizations and Orders of, declarations and filings with, and notices to, any Governmental Body or other Person required to be obtained or made by any Seller, the Company or any of its Subsidiaries to permit the consummation of the transactions contemplated by this Agreement shall have been obtained or made and shall be in full force and effect.
(b) No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the transactions contemplated by this Agreement shall be in effect against any Seller, the Company or any of its Subsidiaries. No Law shall have been enacted or shall be deemed applicable to the transactions contemplated by this Agreement which makes the consummation of such transactions by any Seller, the Company or any of its Subsidiaries illegal.
(c) Each of the representations and warranties of the Sellers and the Company set forth in Section 3(a) above this Agreement that is qualified by materiality or Materiality shall be true and correct at and as of the Closing Date and each of such representations and warranties that is not so qualified shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
, except in each case (i) to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date or (ii) the Sellers for changes contemplated by this Agreement.
(d) The Company and each Seller shall have performed and or complied with all of their covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated with all obligations and covenants required by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling performed or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and
(iv) From the date hereof through the Initial Closing Date or, if applicable, the Second Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or prospects of Target. All actions to be taken complied with by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating Company or such Seller at or prior to the Initial Closing or, if applicable, the Second ClosingDate.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Initial Closing or, if applicable, the Second Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) 3 above shall be true and correct in all material respects at and as of the Initial Closing Date or, if applicable, the Second Closing Date;
(ii) the Sellers Target shall have performed and complied with all of their its covenants hereunder in all material respects through the Initial Closing or, if applicable, the Second Closing;
(iii) no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling ruling, or charge shall be in effect), or (C) affect adversely the right of the Buyer to own the Target Shares; and;
(iv) From the date hereof through Target shall have delivered to the Initial Closing Date or, if applicable, Buyer a certificate to the Second Closing effect that each of the conditions specified above in Section 6(a)(i)-(iii) are satisfied in all respects;
(v) the Target shall have delivered to Buyer (A) a Certificate of Good Standing issued by the Secretary of State of the State of Illinois dated not more than thirty (30) days prior to the Effective Date, there shall have been no material adverse change in and (B) a certified copy of the financial condition, results of operations, properties, business or prospects resolutions approving this transaction and this agreement by the directors and shareholders of Target. All ;
(vi) all actions to be taken by the Sellers Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments instruments, and other documents required to effect the transactions contemplated hereby will shall be reasonably satisfactory in form and substance to the Buyer.
(vii) The Buyer shall have completed a satisfactory due diligence investigation of the Target, acceptable to Buyer at its sole discretion.
(viii) The Target shall have furnished audited financial statements prepared in accordance with generally accepted accounting principles (GAAP) to the Buyer as required by the Securities Exchange Act. Additionally, the Target shall furnish its most recent fiscal quarter financial statements prepared in accordance with GAAP to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Initial Closing or, if applicable, the Second Closing.
Appears in 1 contract
Samples: Merger Agreement (Nucleus Inc)
