Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement); (ii) the Seller and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing; (iii) there shall not be any injunction, judgment, order, decree, ruling or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement; (iv) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects; (v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects; (vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and (vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company. (viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet. (ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date. (x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Winsloew Furniture Inc), Stock Purchase Agreement (Winsloew Furniture Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Sections 4 and 5 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) the Seller shall have performed and complied with all of her covenants hereunder in all material respects through the 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 or (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);
(iv) the Purchaser shall have received the resignation of the sole officer and director of the Company and the designees specified by the Purchaser will have been appointed as officers and directors of the Company; and
(v) the Purchaser will have received such pay-off letters and releases relating to outstanding indebtedness and liabilities as it will have reasonably requested and such pay-off letters and releases will be in form and substance reasonably satisfactory to the Purchaser. The Purchaser may waive any condition specified in this Section 10(a) at or prior to the Closing in writing executed by the Purchaser.
(b) Conditions to Obligation of the Seller. The obligations of the Seller to consummate the transactions to be performed by her in connection with the Closing are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 6 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Purchaser shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iii) there no action, suit, or proceeding shall not 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim Agreement or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(iv) the Seller shall have delivered all actions to be taken by the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofinstruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be satisfactory in form and substance to the Seller. The Purchaser Seller may waive any condition specified in this Section 9(a10(b) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Seller.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Net Profits Ten Inc.), Stock Purchase Agreement (Net Profits Ten Inc.)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserBuyer’s Obligation. The Buyer’s obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section §3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as though made then so written, including the term “material” or “Material”) shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Sellers shall have performed and complied with all of their respective the covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) there Sellers and Division shall not have procured all of the third-party consents specified in §5(b) above;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(ivv) there shall not have been, or the Seller occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered to the Purchaser Buyer a certificate to the effect that each of the conditions specified above in Section 9(a)(i§7(a)(i)-(vii) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tidel Technologies Inc), Asset Purchase Agreement (Tidel Technologies Inc)
Conditions to Obligation to Close. (a) A. Conditions to Obligation of the PurchaserBrokat. The obligation of the Purchaser Brokat to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) 1. the representations and warranties set forth in Section 3 (S)III.A. and Article IV., above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) 2. the Seller Shareholders and the Company TST shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
3. TST and its Subsidiaries shall have procured all of the material third party consents specified in (iii) there S)V.B. above;
4. no action, suit, or proceeding shall not be pending before any court or quasi- judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of Brokat to own TST Shares and to control TST and its Subsidiaries, or (D) affect materially and adversely the right of any of TST 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);
(iv) 5. the Seller Shareholders shall have delivered to the Purchaser Brokat a certificate to the effect that each of the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been S)VII.A.1.-4. is satisfied in all respects;
6. all applicable waiting periods (vand any extensions thereof) under the Seller Xxxx- Xxxxx-Xxxxxx Act shall have delivered expired or otherwise been terminated and the Parties, TST, and its Subsidiaries shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) (S)III.A.2., (S)III.B.1., and (ii)S)IV.B.1., as they pertain to the Company, have been satisfied in all respectsabove;
(vi) 7. all actions to be taken by the Seller shall have delivered to the Purchaser all Shareholders, TST and any of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary its Subsidiaries in connection with the consummation of the transactions contemplated by this Agreementherein and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Brokat;
8. all U.S. federal and state securities law requirements have been satisfied; and
9. receipt by this AgreementBrokat of written resignations of all directors and officers of TST and its Subsidiaries who are Shareholders. The Purchaser Brokat may waive any condition specified in this Section 9(a) (S)VII.A. if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Brokat Aktiengesellschaft), Stock Purchase Agreement (Brokat Infosystems Ag)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserInvestor. The obligation of the Purchaser Investor to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true 3(a) and correct and any such representations and warranties that are not so qualified Section 4 shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement), taking into account the Disclosure Schedule;
(ii) the Seller representations set forth in Section 3(a) and Section 4 shall be true and correct in all material respects as of the Company Closing Date, taking into account the Disclosure Schedule (as supplemented in accordance with Sections 5(g) and 5(q) hereof);
(iii) from the date of this Agreement through the Closing Date, no Material Adverse Effect shall have occurred;
(iv) HarnCo and Sellers shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiv) there shall not be any action, suit or proceeding pending or threatened before any Governmental Agency or before any arbitrator in connection with the consummation of the transactions contemplated by this Agreement wherein an unfavorable injunction, judgment, order, decree, ruling or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement to be rescinded following consummation or result in material damages to Investor, the MHE Business or the Companies, (C) affect adversely the right of the Investor to own the shares of MHE and to control the Companies and their Subsidiaries , or (D) have a material adverse effect on the right of the Companies and their Subsidiaries to own their assets or to operate their business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(vi) all applicable waiting periods (and any extensions thereof) under the HSR Act and any applicable European or national merger regulations shall have expired or otherwise been terminated;
(vii) HTI shall have executed the Trademark Agreement;
(ivviii) HII shall have executed the Seller Non-Competition Agreement;
(ix) HarnCo shall have executed the Stockholders Agreement, the Supply Agreement, the Transition Services Agreement, the Assumption Agreement and the Credit Indemnity Agreement;
(x) HarnCo and the Sellers shall have delivered to the Purchaser Investor a certificate to the effect that each of the conditions specified above in Section 9(a)(i7(a)(i) and - (ii), as they pertain to the Seller, have been iv) is satisfied in all respects;
(vxi) the Seller Investor shall have delivered received the opinions in form and substance as set forth in Exhibit H attached hereto, addressed to the Purchaser a certificate to Investor, and dated as of the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsClosing Date;
(vixii) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser Investor shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this AgreementAgreement on terms reasonably consistent with the Commitment Letters and Term Sheets, respectively;
(xiii) The business relationships identified on Schedule 4(m)(vii) (other than those identified in items 4 through 12 and items 17 and 19 thereof) shall have either been (A) terminated or (B) superseded or otherwise modified pursuant to the express terms of the Transaction Agreements (as applicable);
(xiv) The Employment Agreements shall be in full force and effect on the Closing Date.effect; and
(xxv) MHE shall own, directly or indirectly, all of the outstanding equity securities of the other Companies and their Subsidiaries free and clear of all Encumbrances (other than (A) the Purchaser shall have received from Seller all information available to Seller that is requested 15% interest in Blooma held by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate and (in which review Seller shall cooperateB) the Hercules Shares), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser Investor may waive any condition specified in this Section 9(a7(a) if it executes a writing so stating at or prior to the ClosingClosing (without prejudice to any of Investor's rights under Section 8 hereof).
Appears in 2 contracts
Samples: Recapitalization Agreement (Morris Material Handling Inc), Recapitalization Agreement (MMH Holdings Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserParent. The obligation of each of the Purchaser -------------------------------------- Parent and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 (S)3(a) and (S)4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Stockholders shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there the Company and its Subsidiaries shall not have procured all of the material third party consents required pursuant to (S)5(b) above;
(iv) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Parent to own the Company Shares and to control the Company and its Subsidiaries, or (D) affect materially and 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);
(ivv) each of the Seller Stockholders shall have delivered to the Purchaser Parent a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S)7(a)(i)-(ii) is satisfied, and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller Company shall have delivered to the Purchaser Parent a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S)7(a)(iii)-(iv) and (ii), as they pertain to the Company, have been satisfied in all respectsis satisfied;
(vi) the Seller FCC shall have delivered to granted the Purchaser all Transfer of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller Control Application and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, grant shall be in full force and effect, all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated, and the Parties, the Company, and its Subsidiaries shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in (S)3(a)(ii), (S)3(b)(ii), and (S)4(c) above;
(vii) the Parent and each of the Stockholders shall have entered into a Registration Rights Agreement in form and substance as set forth in Exhibit C attached hereto and the same shall be in full force and effect;
(viii) the Parent shall have received from each Stockholder that is not a natural person (A) a copy of resolutions duly adopted by such Stockholder's board of directors authorizing such Stockholder to enter into this Agreement and consummate the transactions contemplated hereby, certified by the secretary or assistant secretary of such Stockholder as being complete and correct and in full force and effect on as of the Closing Date., and (B) an incumbency certificate dated as of the Closing Date with respect to the officer executing this Agreement on behalf of such Stockholder;
(ix) the Parent shall have obtained on terms and conditions satisfactory to it in its sole discretion all of the financing it needs in order to consummate the transactions contemplated hereby;
(x) a majority of the Purchaser Parent's directors that are not Affiliates of the Company shall have approved the transactions contemplated hereby;
(xi) the holders of eighty percent (80%) of the Parent's Senior Preferred Stock shall have approved the transactions contemplated hereby;
(xii) the Parent shall be satisfied that no material adverse change in the financial condition, results of operation, business, assets, properties or prospects of the Company shall have occurred since December 31, 1998;
(xiii) the Parent shall have received an opinion from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with a nationally recognized investment bank stating the transactions contemplated hereby are fair to the Parent from a financial point of view;
(xiv) the Parent and Xxxx Xxxxxxxxx Xxxxx shall have executed amendments to Xx. Xxxxx'x employment and equity incentive agreements on terms satisfactory to Parent in its sole discretion;
(xv) Alta and Syncom shall each have entered into, and shall have pledged all the Parent Class A Shares and Warrants issuable to it hereunder for the benefit of the Senior Lenders pursuant to, a pledge agreement in the form attached hereto as Exhibit D;
(xvi) Xxxx Xxxxxxxxx Xxxxx shall have entered into, and shall have pledged all the Parent Class A Shares and Warrants issuable to her hereunder for the benefit of the Senior Lenders pursuant to, a pledge agreement in the form attached hereto as Exhibit E; and
(xvii) all actions to be taken by this Agreementthe Stockholders 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 Parent. The Purchaser Parent may waive any condition specified in this Section 9(a(S)7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Radio One Inc), Merger Agreement (Radio One Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser Fields to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 and Section 5 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller Principal Shareholder and the Company shall have performed and complied with all of its their respective covenants hereunder in all material respects through the Closing;
(iii) the Company and its Subsidiaries shall have procured all of the third-party consents specified in Section 6(b) above;
(iv) there shall not have been no material adverse changes in the Company and its Subsidiaries;
(v) Fields shall have concluded its due diligence review of the Company and its Subsidiaries to Fields' sole satisfaction;
(vi) 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 ruling, or charge in effect preventing would
(A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before ;
(B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation;
(ivC) affect adversely the right of Fields to own the Company 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);
(vii) the Seller Company and the principal Shareholder shall have delivered to the Purchaser Fields a certificate to the effect that each of the conditions specified above in Section 9(a)(i) and 8(a)(i), (ii), as they pertain to the Seller(iii), have been (iv) and (vi) is satisfied in all respects;
(vviii) Fields shall have received from counsel to the Company and from counsel to the Principal Shareholder written opinions addressed to Fields, dated as of the Closing Date and in form and substance acceptable to Fields and its counsel;
(ix) the Seller Related Transaction Documents shall have been executed by each of the parties thereto, and each of the Related Transactions shall have been closed or each of the conditions for the closing of the Related Transactions concurrently with the Closing of the transaction contemplated by this Agreement shall have been satisfied or waived to Fields' satisfaction;
(x) the Company shall have delivered to the Purchaser a share certificate to Fields evidencing the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsShares;
(vixi) following the Seller shall have delivered to the Purchaser all Closing of the items under Section 2(ftransaction described herein and the Related Transactions, Fields shall own fifty-six (56%) herein; and
(vii) of the outstanding Company Shares on a fully diluted basis, and there shall be no payables or receivables between other shareholders of the Seller Company except the Principal Shareholder;
(xii) all actions to be taken by the Company and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary Principal Shareholder in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be satisfactory in form and substance to Fields. The Purchaser Fields may waive any condition specified in this Section 9(a8(a) if it executes a writing so stating at or prior to the Closing. . The obligation of the Company and the Principal Shareholder to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Fields shall have performed and complied with all of its covenants hereunder in all material respects through the 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 for 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 or (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);
(iv) Fields shall have delivered to the Company and the Principal Shareholder a certificate to the effect that each of the conditions specified above in Section 8(b) is satisfied in all respects;
(v) the Related Transactions Documents, including a developer agreement between the Company and the Principal Shareholder whereby the Principal Shareholder receives the area development rights for Vermont, New Hampshire, Massachusetts, Maine and the Greater Dallas/Ft. Worth, Texas area shall have been executed by all of the parties thereto, and each of the Related Transactions shall have occurred or each of the conditions for the closing of the Related Transactions concurrently with the closing of the transactions contemplated by this Agreement shall have been satisfied or waived to the Company and Principal Shareholder's satisfaction;
(vi) Fields shall be prepared to deliver the Purchase proceeds upon compliance with the matters set forth in Section 8(a); and
(vii) all actions to be taken by Fields 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 Company. The Company and the Principal Shareholder may waive any condition specified in this Section 8(b) if they execute a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Stock Acquisition Agreement (Fields MRS Original Cookies Inc), Stock Acquisition Agreement (Fields MRS Original Cookies Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserCONDITIONS TO OBLIGATION OF NEW ANDRX, ANDRX AND MERGER SUBS. The obligation of New Andrx, Andrx and the Purchaser Merger Subs to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Cybear Merger shall have received the Required Cybear Stockholder Vote;
(ii) Cybear and its Subsidiaries shall have procured all of the third party consents specified in Section 6(b) above;
(iii) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iiiv) the Seller and the Company Cybear shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiiv) there no court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or arbitrator shall not be have enacted, issued, promulgated, enforced or entered any injunction, judgment, order, decree, ruling ruling, or charge in effect preventing which would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Cybear Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of Cybear, or (D) affect adversely the right of any of the former Subsidiaries of Cybear to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivvi) the Seller Cybear shall have delivered to the Purchaser New Andrx a certificate signed by Xx. Xxxxxx X. Goldman and Xxxx Xxxxxxxx to the effect that each of the conditions specified above in Section 9(a)(i7(a)(i)-(v) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(vvii) the Seller S-4 Registration Statement shall have delivered become effective under the Securities Act;
(viii) the New Andrx Common Stock and Cybear Tracking Common Stock that will be issued in the Mergers shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance;
(ix) This Agreement and the Purchaser a certificate Andrx Merger shall have received the Required Andrx Stockholder Vote;
(x) Andrx shall have received from Xxxxxx Xxxxxxxx LLP an opinion (the "Andrx Closing Tax Opinion") to the effect that the conditions specified above in Andrx Merger should constitute a tax-free reorganization pursuant to Code Section 9(a)(i368(a)(1)(A) addressed to Cybear and (ii)Andrx, as they pertain to and dated the Company, have been satisfied in all respectsClosing Date;
(vixi) the Seller New Andrx and Cybear shall have delivered to entered into the Purchaser all of Tax Sharing Agreement attached hereto as Exhibit C (the items under Section 2(f) herein"Tax Sharing Agreement"); and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ixxii) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary to be taken by Cybear in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to New Andrx. The Purchaser New Andrx, Andrx and the Merger Subs may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing, except where such condition may not be waived as a matter of law.
Appears in 2 contracts
Samples: Merger Agreement (Cybear Inc), Merger Agreement (Andrx Corp)
Conditions to Obligation to Close. (a) a. Conditions to Obligation of the Purchaser. : The obligation of -------------------------------------------- the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) i. the representations and warranties set forth in Section 3 Sec.4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) . the Seller Company and the Company Shareholders shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there . the Company shall not have obtained all the necessary third party consents before the Closing Date;
iv. no action, suit, or proceeding shall be pending or threatened before any injunctioncourt or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable judgment, order, decree, ruling stipulation, injunction, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, or (C)affect adversely the right of the Purchaser to own the Company Shares and to exercise all rights as a shareholder of the Company (and no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(iv) the Seller v. there shall have been elected to the Board of Directors, the following slate of members: John French, John Sprxxxxxx, Xxxry X. Xxxxx xxx Xxxxxx Xxxxx;
xx. The Shareholders' Agent Agreement, attached as Exhibit 10(p) and as described in Section 10(p) shall have been executed and delivered by the Shareholders and the Shareholders' Agents, as contemplated therein;
vii. There shall have been delivered to Purchaser the Purchaser a certificate legal opinion of Egger Betts Austin PLXX, xoxxxxx xxx xxe Shareholders, with respect to the effect that the conditions specified above matters set forth in Section 9(a)(iSections 4(a),(d) and (iie);
viii. all actions to be taken by the Company or the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, as they pertain opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satin, factory in form and substance to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinPurchaser; and
(vii) there ix. the Purchaser and its agents and representatives shall be no payables or receivables between have had the Seller opportunity to complete a due diligence investigation of the business, assets, liabilities, properties and financial condition and prospects of the Company or between Affiliates and its subsidiaries, including without limitation, a review of the Seller Financial Statements, books and records, products, inventory, customers, suppliers, facilities, employment matters, intellectual property ownership and stock records of the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniturebe completely satisfied, Inc.'s line of credit with Fleet.
(ix) all consentsin its sole discretion, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation results of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreementdue diligence investigation. The Purchaser may waive any condition specified in this Section 9(aSec. 8(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase and Subscription Agreement (Upgrade International Corp /Fl/)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 5 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Sellers shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there the Company shall not have procured all of the third party consents required in order to effect the Closing;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Seller Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivv) the Seller Sellers shall have delivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i9(a)(i)-(iv) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) , and (ii)B) as of the Closing, as they pertain to the Company, have been satisfied in all respectsCompany has no Liabilities;
(vi) the Seller The Purchaser shall have delivered received an opinion of counsel to the Purchaser Sellers providing that all of the items under Section 2(f) herein; andSeller Shares were validly issued, are fully paid and non-assessable and were issued in compliance with all laws, including, without limitation, applicable federal and state securities laws;
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement received the transactions provided for in this Agreement resignations, effective as of the tenth (10th) day following the filing by the Company of a Schedule 14f-1 information statement with the Securities and to provide sufficient working capital on such terms and conditions as are acceptable to Exchange Commission, of each director of the Purchaser, Company and the Purchaser shall have satisfied all received the resignations, effective as of the conditions precedent Closing, of each officer of the Company. The designees specified by the Purchaser shall have been appointed as officers of the Company and any designees of the Purchaser who may be lawfully appointed to acquisitions under WinsLoew Furniturethe Board of Directors of the Company as of the Company shall have been appointed;
(viii) there shall not have been any occurrence, Inc.'s line event, incident, action, failure to act, or transaction since April 30, 2009 which has had or is reasonably likely to cause a material adverse effect on the business, assets, properties, financial condition, results of credit with Fleet.operations or prospects of the Company;
(ix) all consentsthe Purchaser shall have completed their business, waivers, exemptions, governmental approvals, regulatory approvals accounting and other actions that are necessary in connection with the consummation legal due diligence review of the transactions contemplated by this AgreementCompany, and the results thereof shall be in full force and effect on satisfactory to the Closing Date.Purchaser;
(x) the Purchaser shall have received from Seller all information available such pay-off letters and releases relating to Seller that is Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xi) the Purchaser shall have conducted UCC, judgment lien and tax lien searches with respect to the Company, the results of which indicate no liens on the assets of the Company;
(xii) the Company shall have delivered its Certificate of Incorporation and bylaws, both as amended to the Closing Date, certified by the Purchaser promptly after Secretary of the date hereofCompany, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated hereby and the Company shall have delivered to the Purchaser the Company's original minute book and corporate seal and all other original corporate documents and agreements;
(xiii) the Company shall deliver to the Purchaser confirmation that the Company is in Good Standing with the Nevada Secretary of State.
(xiv) the Company shall have maintained at and immediately after the Closing its status as a company whose Common Stock is quoted on the OTB Bulletin Board; and
(xv) all actions to be taken by this Agreementthe Seller 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 satisfactory in form and substance to the Purchaser.
(xvi) the Company shall have filed the Form 10-Q for the period ending April 30, 2010 . The Purchaser may waive any condition specified in this Section 9(a10(a) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Purchaser.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. 8.1 The obligation of the Purchaser Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the representations Company and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge Shareholders shall have procured all of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as third party consents necessary to consummate this transaction for the sale of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Shares;
(iib) the Seller and the Company Parties shall have performed received all required authorisations, consents and complied with all approvals of their respective covenants hereunder in all material respects through the Closinggovernments and governmental agencies;
(iiic) there Mx Xxxxxxx and Mx Xxxxxxx shall not be any injunction, judgment, order, decree, ruling or charge in effect preventing consummation of any have each entered into their respective Employment Contracts;
(d) the Parties shall have entered into the Tax Deed;
(e) the Buyer shall have received audited accounts of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding Company for the period ended 3 December 1997 which shall be pending before any Authority which seeks reasonably satisfactory in form and substance to prohibit the Buyer;
(f) all actions to be taken by the Company or enjoin the Shareholders in connection with consummation of the transactions contemplated by this Agreementhereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer;
(ivg) any necessary waivers or consents having been obtained so as to enable the Seller shall have delivered Buyer to be registered as the Purchaser a certificate to holder of the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respectsShares;
(vh) the Seller Buyer shall have delivered received duly executed stock transfer forms in its favour from each of the Shareholders in respect of the Shares being sold by each of them, together with the share certificates relating to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsShares;
(vii) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser Buyer shall have received from Seller all information available land certificates, charge certificates and leases, title deeds and other documents relating to Seller the Property (save to the extent that is requested by the Purchaser promptly after same are in possession of mortgagees);
(j) the date hereofBuyer shall have received the common seals, certificates of incorporation and the Purchaser, upon review statutory books for the Company properly completed up to Closing;
(k) the Shareholders shall have each signed a power of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, attorney in the good faith determination agreed form enabling the Buyer to vote on the Shares pending their registration in the Buyer's name in the Company's register of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. members.
8.2 The Purchaser Buyer may waive in writing any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the ClosingClause 8.1.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserPurchaser and the Purchaser ----------------------------------------------------------- Subsidiary. The obligation of each of the Purchaser and the Purchaser Subsidiary ---------- to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by Purchaser or Purchaser Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all third-party consents specified in (S)5(b) above which are applicable to the Target and its Subsidiaries;
(iii) the representations and warranties set forth in Section 3 (S)3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date Date, except for (as though made then and as though the Closing Date were substituted for the date of A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iiiv) the Seller and the Company Target shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiiv) there shall not be neither any injunctionstatute, judgmentrule, regulation, order, decree, ruling stipulation or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding injunction (each an "Order") shall be pending before enacted, promulgated, ----- entered, enforced or deemed applicable to the Merger nor any Authority other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which seeks to prohibit or enjoin prohibits the consummation of the transactions contemplated by this Agreementthe Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal; or (D) which imposes material limitations on the ability of the Purchaser or the Purchaser Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by the Purchaser on all matters properly presented to the Target Stockholders; or (E) which imposes any limitations on the ability of the Purchaser or the Purchaser Subsidiary, or any of their respective Subsidiaries, effectively to control in any material respect the business or operations of the Target or any of its Subsidiaries;
(ivvi) the Seller Target shall have delivered to the Purchaser and the Purchaser Subsidiary a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S)6(a)(i)-(S)6(a)(iv) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
; provided, however, with respect to (v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (iiS)6(a)(i), as they pertain the Target shall only be required -------- ------- to certify that this Agreement and the Company, have been satisfied in all respects;
(vi) Merger received the Seller shall have delivered to the Purchaser all Requisite Stockholder Approval of the items under Section 2(f) herein; andTarget Stockholders;
(vii) there all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall be no payables have expired or receivables between the Seller otherwise been terminated, and the Company or between Affiliates Parties shall have received all other material authorizations, consents and approvals of the Seller governments and the Company.governmental agencies referred to in (S)3(d) and (S)4(d) above;
(viii) the Purchaser Purchase Warrant shall have obtained financing to implement been exercised in full, provided, that such exercise may be conditioned upon the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to effectiveness of -------- the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.Merger;
(ix) all consentsthe Purchaser Shares to be issued in the Merger shall have been approved upon official notice of issuance for quotation on Nasdaq, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation subject to official notice of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.issuance; and
(x) the Purchaser Registration Statement shall have received from Seller all information available to Seller that is requested been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC. Subject to the provisions of applicable law, the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter thatSubsidiary may waive, in the good faith determination of Purchaserwhole or in part, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a(S)6(a) if it executes they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Primus Telecommunications Group Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser’s Obligation. The Purchaser’s obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the The representations and warranties set forth in Section 3 3(a) and Section 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date Date, and no breach of the representations and warranties, individually or in the aggregate, will cause a Material Adverse Effect except to the extent that such representations and warranties are qualified by the terms “material” or “Material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as though made then so written, including the term “material” or “Material”) shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller Sellers and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the terms “material” or “Material” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) there Company and its Subsidiaries shall not have procured all of the third-party consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending or, to the Knowledge of the Company and its Subsidiaries or any of the Sellers, 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) adversely affect the right of Purchaser to own the Shares and to control Company and its Subsidiaries, or (D) adversely affect the right of Company or any of its Subsidiaries to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivv) the Seller Sellers and Company shall have delivered to the Purchaser a certificate to the effect that each of the conditions specified above in Section 9(a)(i7(a)(i)-(iv) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Seller Hxxx-Xxxxx-Xxxxxx Act shall have delivered expired or otherwise been terminated and the Parties, Company, and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser all of the items under in Section 2(f3(a)(ii), Section 3(b)(ii), and Section 4(c) herein; andabove;
(vii) there the relevant parties shall be no payables or receivables between have executed the Seller amendment relating to the waiver of prepayment penalties in form and substance as set forth in Exhibits C attached hereto and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, same shall be in full force and effect on the Closing Date.effect;
(xviii) the Purchaser shall have received from Seller counsel to Company and Sellers an opinion in form and substance reasonably satisfactory to Purchaser dated as of the Closing Date;
(ix) Purchaser shall have received the resignations, effective as of the Closing, of each director of Company and its Subsidiaries other than those whom Purchaser shall have specified in writing prior to the Closing;
(x) all information available actions to Seller that is requested be taken by Sellers in connection with consummation of the Purchaser promptly after the date hereoftransactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Purchaser;
(xi) Purchaser shall have obtained, or received evidence of already existing, title policies and surveys for all Owned Real Property of the Company and its Subsidiaries, in all cases in form and substance reasonably satisfactory to the Purchaser, upon review of such matters related ;
(xii) Company and its Subsidiaries shall have obtained and delivered to Seller, its assets, liabilities, financial condition, business, prospects or relations Purchaser a written consent with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser respect to be dissatisfied in any material respect with the transactions contemplated by this Agreement for each of the Leases set forth on Schedule 4(e)(ii) which may require a consent from the other party to the Lease pursuant to the terms thereof, and, if requested by Purchaser’s lender, a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under such Lease (the “Lease Consents”), in form and substance reasonably satisfactory to Purchaser and Purchaser’s lender;
(xiii) Company and its Subsidiaries shall have executed mutual releases with each Seller and each director and officer of the Company and Subsidiaries;
(xiv) Sellers and the Company shall have delivered to Purchaser a properly executed statement from the Company satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Purchaser (the “FIRPTA Affidavit”);
(xv) no damage or destruction or other change has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would materially impair the use or occupancy of the Real Property or the operation of Company’s or its Subsidiaries’ business as currently conducted thereon;
(xvi) Company and Subsidiaries shall have delivered to Purchaser copies of the certificate of incorporation or formation, as applicable, certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s incorporation (or formation);
(xvii) Company and Sellers shall have delivered to Purchaser copies of the certificate of good standing of each entity Seller, Company, and Company Subsidiary issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s organization;
(xviii) Company and Sellers shall have delivered to Purchaser a certificate of the secretary or an assistant secretary of each of entity Sellers, dated the Closing Date, in form and substance reasonably satisfactory to Purchaser, as to: (i) the resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of such Seller authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (ii) incumbency and signatures of the officers of such Seller executing this Agreement or any other agreement contemplated by this Agreement; and
(xix) The executive officers of the Company or any Subsidiary shall have waived their rights to any payments of compensation or vesting of stock awards or options to the extent that such payment or vesting would result in an excess parachute payment within the meaning of Section 280G of the Code. The Purchaser may waive any condition specified in this Section 9(a7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser6.1 CONDITIONS TO OBLIGATIONS OF 800 TRAVEL AND MERGER CORP. The obligation obligations of the Purchaser 800 Travel and Merger Corp. to consummate the transactions to be performed by it them in connection with the Closing is are subject to satisfaction of the following conditions:
(ia) the The representations and warranties set forth in Section 3 SECTION 3.1 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iib) the Seller and the Company The Shareholders shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiic) there Prestige shall not have procured all necessary third party consents;
(d) 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 ruling, or charge in effect preventing would (i) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (ii) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (iii) affect adversely the right of 800 Travel and Merger Corp. to own the Prestige Shares and to control Prestige, or (iv) affect adversely the right of Prestige to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ive) the Seller The Parties shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) received any and (ii)all other necessary authorizations, as they pertain to the Sellerconsents, have been satisfied in all respectsand approvals of landlords, governments and governmental agencies;
(vf) the Seller 800 Travel and Merger Corp. shall have delivered to received the Purchaser a certificate to resignations, effective as of the effect that the conditions specified above in Section 9(a)(i) Closing, of each director and (ii), as they pertain to the Company, have been satisfied in all respectsofficer of Prestige;
(vig) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller 800 Travel and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser Merger Corp. shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable satisfactory to the Purchaser, them in their sole discretion and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory judgment approvals and other actions that are necessary consents in connection with the consummation of order to consummate the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.hereby;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (800 Travel Systems Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement);
(ii) the Seller Sellers and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
(iv) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects[intentionally omitted];
(v) the Seller Sellers shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Seller Hart-Scott-Rodino Act shall hxxx xxxxxxx xx xxherwise been terminated;
(vii) the Sellers shall have delivered to the Purchaser all of the items under Section 2(f2(g) herein; andherein (other than the item contemplated under Section 2(g)(i));
(viiviii) there shall be no payables or receivables between the Seller Sellers and the Company or between Affiliates of the Seller Sellers and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.;
(ix) all consentsif applicable, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary the Sellers shall delivered the spousal consents substantially in connection with the consummation form of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.Exhibit G hereto; and
(x) the Purchaser Financing contemplated by the Financing Commitment Letter shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (been funded in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect accordance with the transactions contemplated by this Agreementterms of the Financing Commitment Letter. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) 7.1 Conditions to Obligation of the PurchaserParent and Merger Sub. The obligation obligations of the Purchaser Parent and the Merger Sub to consummate the transactions to be performed by it each in connection with the Closing is are subject to satisfaction of the following conditions:
(ia) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall this Agreement will be true and correct in all material respects at and as of the Closing Date (Date, except to the extent that such representations and warranties are qualified by terms such as though made then "material" and "Material Adverse Effect," in which case such representations and warranties will be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(iib) the Seller Target and the Company shall Principal Stockholders will have performed and complied with all of their respective his, her or its covenants hereunder contained in this Agreement in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" and "Material Adverse Effect," in which case such covenants will be performed and complied with in all respects at and as of the Closing Date;
(iiic) there shall not the Target will have procured all of the necessary third party consents, authorizations and approvals, all of which must be final and non-appealable, including without limitation any consents required under any of the Leases;
(d) no action, suit or proceeding will be pending or threatened before any Governmental Authority in which an unfavorable injunction, judgment, order, decree, ruling or charge in effect preventing would: (i) prevent consummation of any of the transactions contemplated by this Agreement; (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; (iii) affect adversely the right of the Parent to own Target Stock and to control the Target; or (iv) affect adversely the right of the Target to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling or charge will be in effect);
(e) each of the Target and Principal Stockholders will have executed and delivered to the Parent a certificate to the effect that each of the conditions specified in this Section 7.1(a) to (d) is satisfied in all respects;
(f) the Parties will have received all other necessary authorizations, consents and approvals of any Governmental Authority, all of which must be final and non-appealable;
(g) the relevant parties will have entered into the Escrow Agreement, which must be in full force and effect;
(h) the relevant parties will have entered into the Paying Agent Agreement, which must be in full force and effect;
(i) the Target will have delivered to the Parent written resignations from all of the incumbent officers, directors or persons holding similar positions of the Target;
(j) the Target will have delivered to the Parent a properly executed statement and corresponding notice to the Internal Revenue Service dated as of the Closing Date in a form reasonably acceptable to the Parent so that the holders of the Target Stock are exempt from withholding under Treasury Regulation Section 1.1445-2(c)(3);
(k) each of the Principal Stockholders will have entered into releases releasing the Target and its successors from any employment-related and certain other Liabilities, which releases must be satisfactory to the Parent and in full force and effect;
(l) each Person who will, as of the Closing Date, hold outstanding unvested options to purchase Common Stock under the Target Option Plan, that will not be Vested Options or Unvested Options, will have entered into an option cancellation agreement and release releasing the Target and its successors from any and all Liabilities in connection with such outstanding unvested options, which must be in full force and effect;
(m) the Parent will have received from outside counsel to the Target a legal opinion substantially in the form of the attached Exhibit F, addressed to the Parent, and no actiondated as of the Closing Date;
(n) the Target will have delivered a certified copy of all board of directors, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin stockholder and other corporate resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(ivo) the Seller shall Target will have delivered to a certified copy of resolutions of the Purchaser a certificate to board of directors of the effect that Target substantially in the conditions specified above in Section 9(a)(iform of the attached Exhibit G, authorizing the termination of the Target's 401(k) and (ii), as they pertain to the Seller, have been satisfied in all respectsPlan;
(vp) the Seller shall Target will have delivered issued Preferred Stock and Warrants to Sheikh Khaled Bin Zayed Al Nehayan in exchange for the conversion, cancellation and delivery of that certain Promissory Note and Credit Facility/Loan Agreement, dated February 26, 2003, between the Target and Sheikh Khaled; (q) there will not have occurred any Material Adverse Effect with respect to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsTarget;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) 6.01 Conditions to Obligation of the PurchaserParent and the Buyer. The obligation of the Purchaser Parent and the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the The representations and warranties set forth in Section 3 Article III above that are qualified as to their materiality or to the Knowledge of the Seller (taken collectively and individually) shall be true and correct in all material respects at and any as of the date of the Agreement, and such representations representation and warranties that are not so qualified (taken collectively and individually) shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though Date, without giving any effect to any amendment to the Closing Date were substituted for Disclosure Schedule delivered by the Seller to the Buyer after the date of this Agreement);
(iib) the The Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the ClosingClosing Date;
(iiic) there The Seller shall not have procured all of the third party consents specified in Section 5.02 above;
(d) 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 ruling, or charge in effect preventing would prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (ii) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, or (iii) affect adversely the right of the Parent or the Buyer to own the Acquired Assets, or to operate the former businesses of the Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ive) The Seller shall have obtained the Required Seller Shareholder Vote specified in Section 5.03 above;
(f) Xxxx X. Xxxx and Xxxxx X. Xxxxxxxx, in their capacities as Co-Chief Executive Officers of the Seller, Xx. Xxxxx X. Cox, in his capacity as Chairman and Chief Technology Officer of the Seller, Xxxx X. Xxxxxxx, in his capacity as Chief Financial Officer of the Seller, and Xxxxx X. Xxxxxx, in his capacity as President of the Cox Recorders Division shall have delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit K attached hereto to the effect that each of the conditions specified above in Sections 6.02(a) through (e) is satisfied in all respects and covering in reasonable detail the amount, if any, of Aggregate Annual Revenues attributable to Lost Customers;
(g) The Seller's Secretary shall have executed and delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit L attached hereto regarding the Seller's authorizing resolutions and incumbency of officers;
(h) The Seller shall have executed and delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit M attached hereto to the effect that Net Revenues, calculated in good faith, as of the Effective Time, are at least $8,000,000;
(i) The Seller shall have executed and delivered the Xxxx of Sale, and all additional transfer documents required to validly assign to the Parent or the Buyer, in recordable form, all of the Acquired Assets;
(j) The Seller shall have executed and delivered the Assumption, and all additional transfer documents required for the Parent and Buyer to validly assume the Assumed Liabilities;
(k) The Seller shall have delivered to the Purchaser a certificate Parent and the Buyer releases of any Security Interests identified in Section 3.04 of the Disclosure Schedule (including, but not limited to the effect that the conditions specified above in Section 9(a)(i) and (iiSecurity Interests of Technology Investors), as they pertain together with termination statements, discharges and the like in recordable form, or agreements from such secured parties in form acceptable to the SellerParent and the Buyer to provide such releases, have been satisfied termination statements, discharges and the like upon receipt of the payments specified in all respectssuch agreements;
(vl) the The Seller shall have delivered received all other authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects3.03 above;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) 7.01 Conditions to Obligation Obligations of the PurchaserBuyer and Family Golf. The obligation respective obligations of the Purchaser Buyer and Family Golf to consummate the transactions to be performed contemplated by it in connection with the Closing is this Agreement are subject to satisfaction (or, where legally permissible, waiver by the Buyer and Family Golf) at or prior to the Closing Date of the following conditions:
(ia) the representations and warranties set forth in Section 3 3.01 and Article IV above that are qualified as to their materiality or to the Knowledge of the Seller shall be true (taken collectively and correct and any such representations and warranties that are not so qualified individually) shall be true and correct in all material respects at and as of the Closing Date (Date, as though made then again at and as though of such date, without giving effect to any amendment to the Closing Date were substituted for Disclosure Schedule delivered to the Buyer after the date of this Agreement (provided, however, that this subsection 7.01(a) shall not apply to any representations or warranties made with respect to any of RMSC, RMC or RMS or their respective businesses, financial conditions, assets, tax positions or any other matters affecting any of such corporation(s));
(b) since the date of this Agreement), there shall have been no Material Adverse Effect;
(iic) the Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiid) there the Seller shall not have obtained, or shall have caused SkateNation to obtain, (i) all of the third party consents specified in Section 5.02 above (subject to the exceptions noted in such Section) and provided written evidence of receipt of such consents in form reasonably satisfactory to Buyer and (ii) all datedown endorsements or title reports or commitments to Title Insurance Policies specified in Section 5.10 above;
(e) no action, suit, or proceeding shall be pending before any court or quasi- judicial or administrative agency of any Governmental Authority or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would, and no statute, ordinance, rule, regulation or other law shall have been enacted or promulgated by any federal, state, local or foreign government or Governmental Authority which would, (i) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (ii) require any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (iii) affect adversely the right of the Buyer to own, and to exercise all privileges of ownership of, the Purchased Shares and to control SkateNation and its Subsidiaries, or (iv) have a material adverse effect on the right of SkateNation and its Subsidiaries to own their assets and to operate their businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivf) the Seller shall have delivered to the Purchaser Buyer and Family Golf a certificate certificate, dated the Closing Date and executed by an officer of Seller on behalf of the Seller, to the effect that each of the conditions specified above in Section 9(a)(i7.01(a) through (e) is satisfied;
(g) all applicable waiting periods (and (iiany extensions thereof) under the Xxxx- Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated, and the Parties and SkateNation shall have received all other authorizations, consents, and approvals of, and all requisite notices shall have been given to, the Governmental Authorities referred to in Sections 3.01(b), 3.01(c), 3.02(b), 3.02(c), 4.04 and 5.02(b) above;
(h) The Seller's Secretary shall have executed and delivered to the Buyer a certificate in form and substance as they pertain to set forth in Exhibit D attached hereto regarding the charter, and by-laws of the Seller, have been satisfied in all respectsauthorizing resolutions adopted by the Seller's Board of Directors, and incumbency of signing officers;
(vi) the Seller shall have delivered to the Purchaser Buyer long form good standing certificates in respect of Seller and SkateNation issued by the Secretary of State of Delaware, and a certificate of good standing issued by the Secretary of State of each state in which SkateNation is qualified to the effect that the conditions specified above in Section 9(a)(i) and (ii), do business as they pertain to the Company, have been satisfied in all respectsa foreign corporation;
(vij) the Seller shall have delivered to the Purchaser all Buyer a good standing certificate in respect of each of SkateNation's Subsidiaries issued by the Secretary of State of their respective jurisdictions of organization and of each state in which each such Subsidiary is qualified to do business as a foreign limited liability company or corporation;
(k) 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 Family Golf, and dated as of the items under Section 2(f) herein; andClosing Date;
(viil) there the Buyer shall be no payables or receivables between have received the resignations, effective as of the Closing Date, of each director and officer of SkateNation other than those whom the Buyer shall have specified to the Seller in writing at least five Business Days prior to the Closing;
(m) the Buyer shall have received from Seller an affidavit in form and the Company or between Affiliates of substance as set forth in Exhibit F attached hereto regarding Seller's status as a non-foreign corporation;
(n) all actions to be taken by the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated hereby shall have been reviewed by this Agreementand be reasonably satisfactory in form and substance to Xxxxx & Xxxxx, LLP, counsel for the Buyer and Family Golf; and
(o) Seller shall have delivered to Buyer an unaudited consolidated balance sheet and statements of operations for SkateNation and its Subsidiaries as of and for the one month period ending on the Effective Date (the "Effective Date Financial Statements") together with a certificate containing representations as to such financial statements that are substantially similar to the representations with respect to the unaudited financial statements set forth in Section 4.08 hereof. The Purchaser Buyer and Family Golf may waive any condition specified in this Section 9(a) 7.01 if it executes they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserParent and Merger Sub. The obligation of the Purchaser Parent and Merger Sub to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge (considered collectively) and each of the Seller shall be true and correct and any such representations and warranties that are not so qualified (considered individually) shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Agreement and at and as of the Closing Date;
(ii) the Seller Company and the Company Principal Shareholders shall have performed and complied with all of their respective covenants and obligations hereunder (considered collectively) and each of such covenants and obligations hereunder (considered individually) in all material respects through the Closing;
(iii) there the Company shall not have procured all of the third party consents specified on Schedule B hereto;
(iv) 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 unfavourable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of the Company Shares and other Equity Rights to be cancelled upon the Merger, or Merger Sub to own the assets of the Company, or to operate the Business (and no actionsuch injunction, suitjudgment, claim order, decree, ruling, or proceeding charge shall be pending in effect);
(v) all filings that are required to have been made by the Parties with any Canadian, United States or other Governmental Body in order to carry out the transactions contemplated by this Agreement shall have been made and all authorizations, consents and approvals from any Canadian, United States or other Governmental Body required to carry out the transactions contemplated by this Agreement shall have been received and any applicable waiting periods (and any extensions thereof) shall have expired provided, that Parent and Merger Sub shall not be relieved of their obligations to consummate the transactions if they have not used reasonable best efforts to complete filings and seek the consents within their control;
(vi) the Company shall have delivered to the Parent a certificate, executed by the Company to the effect that the conditions specified above in Sections 5(a)(i)-5(a)(v) have been satisfied in all respects;
(vii) each of Alan Hardwick and Suzanne Schneider shall have entered xxxx x xxfinitxxx Xxxxxxxxxx Xxreement with the Surviving Corporation (each, an "EMPLOYMENT AGREEMENT"), each containing provisions relating to non-compete obligations satisfactory to the Parent and each in form and substance and with a term reasonably satisfactory to the Parent and the same shall be in full force and effect.
(viii) [This section has been intentionally deleted.]
(ix) [This section has been intentionally deleted.]
(x) other than the funding pursuant to Sections 6(d) and (e) the Company shall have delivered to the Parent payoff letters with respect to all other amounts due under the Indebtedness of the Company, to release Security Interests in respect to the Company and otherwise obtain clear title to the Company Shares, in form and substance reasonably satisfactory to the Parent, and the Company and the Principal Shareholders shall have satisfied all Indebtedness of the Company (including the conversion of any and all Indebtedness owing by the Company to any member of the Targeted Affiliated Group into contributed capital of the Company), and the Company shall have delivered to the Parent, in form satisfactory to the Parent, evidence of the same;
(xi) the Parent, the Company and the Shareholder Representative shall have executed and delivered the Milestone Payment Agreement (the "MILESTONE PAYMENT AGREEMENT") in form and substance as set forth in Exhibit C attached hereto, and the same shall be in full force and effect;
(xii) the Parent, the Company and Targeted shall have executed the Transition Services Agreement (the "TRANSITION SERVICES AGREEMENT") in form and substance as set forth in Exhibit D attached hereto, and the same shall be in full force and effect;
(xiii) the Parent shall have received from Dorsey & Whitney LLP, counsel to Targeted, opinions xxxx respect to Targeted Genetics, the transactions contemplated hereby in form and substance as set forth in Exhibit E attached hereto, addressed to the Parent, and dated as of the Closing Date;
(xiv) the Parent shall have received from Graham & Dunn PC, counsel to the Company, opinions xxxx xespxxx to the Company and the transactions contemplated hereby in form and substance set forth in Exhibit F attached hereto, addressed to the Parent, and dated as of the Closing Date;
(xv) the Company shall have delivered to the Parent evidence reasonably satisfactory to the Parent of the termination of all Equity Rights and the release of all Liability with respect to the Equity Rights;
(xvi) Targeted and the Company shall have taken all corporate action necessary to terminate the Company's participation in, effective no later than the day before any Authority the Closing Date, all Company Plans which seeks are intended to prohibit or enjoin qualify as tax-qualified retirement plans under Code Section 401(a), and evidence of the consummation of same shall have been delivered to the Parent;
(xvii) the Company and the Principal Shareholders shall have executed a funds flow and settlement statement reflecting the transactions contemplated by this Agreement;
(ivxviii) the Seller Company shall have delivered to the Purchaser Parent a certificate of the Secretary of the Company as to the effect that the conditions specified above in Section 9(a)(i) and (ii)incumbency of its officers, as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a copy of a certificate evidencing the incorporation and its authorization to conduct business in the effect that State of Washington, a copy of the conditions specified above in Section 9(a)(i) articles and (ii), as they pertain to bylaws of the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all and a copy of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between resolutions adopted by the Seller board of directors and the Company or between Affiliates Shareholders of the Seller Company authorizing the Merger and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement;
(xix) all actions to be taken by the Company 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 Parent;
(xx) any orders or approvals which may be required from shareholders of the Parent, and regulatory and governmental authorities required to carry out the transactions contemplated by this Agreement shall have been received and any applicable waiting periods shall have expired, including, without limitation, approvals from the Toronto Stock Exchange, including conditional listing approval of the Parent Shares and the Convertible Debenture Shares to be issued in connection with this Agreement and under the Convertible Debenture on the Toronto Stock Exchange, subject to the filing of customary documentation;
(xxi) no Person shall have made or threatened any claim asserting that such Person may be the holder or the beneficial owner of, or may have the right to acquire or obtain beneficial ownership of, any capital stock or other securities of the Company;
(xxii) the Shareholder Representative shall have executed and delivered the Convertible Debenture in form and substance as set forth in Exhibit A attached hereto, and the same shall be in full force and effect on the Closing Date.effect;
(xxxiii) the Purchaser Shareholder Representative shall have received from Seller all information available to Seller that is requested by executed and delivered the Purchaser promptly after Security Agreement (the date hereof"SECURITY AGREEMENT") in form and substance as set forth in Exhibit G hereto, and the Purchaser, upon review same shall be in full force and effect;
(xxiv) there shall have been no Material Adverse Effect with respect of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate the Company since the date of this Agreement;
(in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with xxv) this Agreement and the transactions contemplated hereby shall have been duly and validly approved by this Agreementall of the Shareholders of the Company and none of the holders of the outstanding Company Shares shall have exercised statutory dissenters' rights under Washington law in connection with the Merger;
(xxvi) each Shareholder shall have duly executed and delivered to the Parent a representation and support agreement (the "REPRESENTATION AND SUPPORT AGREEMENT") in form and substance set forth in Exhibit H hereto;
(xxvii) each person who as at the Closing Date has elected to exercise options to purchase the common shares of the Company shall have duly executed and delivered to the Parent a representation agreement (the "OPTIONHOLDER REPRESENTATION AGREEMENT") in form and substance set forth in Exhibit I hereto;
(xxviii) the Company shall have obtained shareholder approval of any payment or benefit that a Company employee or consultant may receive in connection with the Merger that would be considered a "parachute payment" under Section 280G of the Code. Such shareholder approval shall comply with the "Shareholder Approval Requirements" of Section 280(b)(5) of the Code and related Treasury regulations; and
(xxix) the Parent shall be satisfied, in its sole discretion, with its due diligence investigation of the Company and the Company's ongoing working capital requirements. The Purchaser Parent may waive any condition specified in this Section 9(a5(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserInvestor. The obligation of the Purchaser Investor to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 3 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the The Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the ClosingClosing Date;
(iii) there The Company and its Subsidiaries shall not have procured any third party consents specified in Section 5(b) above and shall deliver to the Investor the following documents, each of which shall be appropriately executed other than by the Investor: (A) a Voting Agreement in the form of Exhibit "B" hereto, and (B) an opinion of the Company's legal counsel, Pxxxxxx Xxxxx & Lxxxxxx, in the form of Exhibit "C" hereto;
(iv) no action, suit, or proceeding shall have been instituted before any court or quasi-judicial or administrative agency of any national, federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation;
(ivv) the Seller The Company shall have delivered to the Purchaser Investor a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i8(a)(i)-(iv) and (iiother than the deliveries under Section 8(a)(iii), as they pertain to the Seller, have been ) are satisfied in all respects;
, and (vB) the Seller shall have delivered Company is not aware of any material modifications to the Purchaser a certificate Most Recent Financial Statements necessary to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;make those statements not false or misleading; and
(vi) the Seller all applicable waiting periods (and any extensions thereof) under applicable law shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables expired or receivables between the Seller otherwise been terminated and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser its Subsidiaries shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofother authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5(b) relating to the Purchaser, upon review of such matters related to Seller, Company and its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this AgreementSubsidiaries. The Purchaser Investor may waive any condition specified in this Section 9(a8(a) if it executes a writing so stating at or prior to the Closing. At the Closing, assuming the satisfaction, or waiver by the Investor, of the conditions set forth in this Section 8(a), the Investor shall deliver to the Company the Purchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wireless Cable & Communications Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserAIOP and Parent. The obligation obligations of the Purchaser AIOP and Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 ss.3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company FAM shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iii) there FAM shall not have procured all of the material third party consents specified in ss.5(b) above;
(iv) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, or (C) affect adversely the right of AIOP to own the Interests or to operate the business of NEW FAM;
(ivv) the Seller FAM shall have delivered to the Purchaser AIOP a certificate from an executive officer of FAM to the effect that each of the conditions specified above in Section 9(a)(iss.ss.7(a)(i)-(iv) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v7(b)(viii) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) the Seller FAM, AIOP and Parent shall have delivered received all other material authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser all of the items under Section 2(fin ss.3(c) herein; andand ss.4(c) above;
(vii) there the Auditors shall be no payables or receivables between the Seller and the Company or between Affiliates have provided to Parent written confirmation of the Seller and amounts of FAM's Cost of Acquiring the Company.Advisory Business;
(viii) prior to the Purchaser date on which the Proxy Statement is first mailed to the holders of Parent Shares, the Special Committee shall have obtained financing received the a written opinion from Jefferies & Co., Inc. to implement the effect that the transactions provided for in contemplated by this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable fair to the Purchaserholders of the Parent Shares from a financial point of view, and the Purchaser such opinion shall not have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.been withdrawn;
(ix) the transactions contemplated by this Agreement shall have been approved and adopted by the vote of Parent's shareholders at the 1997 annual meeting of shareholders;
(x) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary to be taken by FAM in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in full force form and effect on the Closing Date.substance to AIOP;
(xxi) FAM shall have furnished AIOP with a certificate that FAM is not a foreign person within the Purchaser meaning of Section 1445 of the Code, which certificate shall meet the requirements of, and be executed in accordance with, Treasury Regulation Section 1.1445-2(b); and
(xii) Parent and AIOP shall have received from Seller all information available the written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx to Seller the effect that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by 2 of this AgreementAgreement will be tax free to Parent and AIOP. The Purchaser AIOP and Parent may waive any condition specified in this Section 9(ass.6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Contribution Agreement (Asset Investors Corp)
Conditions to Obligation to Close. (a) Conditions to of Obligation of the Purchaser. Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 Sections 6 and 7 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) each of the Seller and Pre-Closing Covenants set forth in Section 11, above shall have been satisfied;
(iii) the Company Selling Parties shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiiv) there the Company shall not have procured all of the third party consents required in order to effect the Closing;
(v) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Sellers Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivvi) the Seller Selling Parties shall have delivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i13(a)(i)-(v) and (ii), as they pertain to the Seller, have been is satisfied in all respectsaspects, and (B) as of the Closing, except as otherwise provided in this Agreement, the Company has no Liabilities;
(vvii) the Seller Purchaser shall have received an opinion of counsel customary for transactions of this type that covers, among other things, that the Sellers Shares being delivered pursuant to this Agreement were validly issued, are fully paid and non-assessable and are being delivered to the Purchaser in a certificate to the effect that the conditions specified above private transaction not involving any public offering in Section 9(a)(i) compliance with applicable Federal and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Companystate securities laws.
(viii) the Purchaser shall have obtained financing to implement received the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions resignations, effective as are acceptable to of the PurchaserClosing Date, of each current director of the Company and the Purchaser shall have satisfied all received the resignations, effective as of the conditions precedent Closing Date, of each officer of the Company. The Board of Directors of the Purchaser shall direct that the Designees specified by the Purchaser and named and described in Form 14f-1, as filed with the SEC shall be appointed as Directors of the Company and any officers of the Company who may be lawfully appointed to acquisitions under WinsLoew Furniture, Inc.'s line the newly designated Board of credit with Fleet.Directors of the Company shall be nominated and elected;
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary Except as otherwise set forth in connection with the consummation of the transactions contemplated by this Agreement, there shall be in full force and not have been any occurrence, event, incident, action, failure to act, or transaction since January 31, 2007 which has had or is reasonably likely to cause a material adverse effect on the Closing Date.business, assets, properties, financial condition, results of operations or prospects of the Company;
(x) The Purchaser has fully completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall have received from Seller such pay-off letters and releases relating to Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xii) the Purchaser shall have conducted UCC, judgment lien and tax lien searches with respect to the Company, the results of which indicate no liens on the assets of the Company;
(xiii) the Company shall have delivered its Certificate of Incorporation and bylaws, both as amended to the Closing Date, certified by the Secretary of the Company, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the transactions contemplated hereby and the Company shall have delivered to the Purchaser the Company’s original minute book and corporate seal and all information available other original corporate documents and agreements;
(xiv) the Company shall deliver to Seller that is requested the Purchaser a Certificate of Good Standing in respect of the Company issued by the Delaware Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xv) all actions to be taken by the Selling Parties 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 satisfactory in form and substance to the Purchaser; and
(xvi) At the Closing, there shall be no more than 1,112,525 shares of the Company issued and outstanding other than shares held by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by on a pro-forma basis under this Agreement. The Purchaser may waive any condition specified in this Section 9(a13(a) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Air Brook Airport Express Inc)
Conditions to Obligation to Close. (a) 7.1 Conditions to Obligation of the PurchaserITOCHU’s Obligation. The ITOCHU’s obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the representations and warranties set forth in Section 3 3.1 and Section 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date Closing, except to the extent that such representations and warranties are qualified by the term “material” or contain terms such as “Material Adverse Effect”, “Material Adverse Change” or “materially and adversely”, in which case such representations and warranties (as though made then so written, including the term “material” “Material Adverse Effect”, “Material Adverse Change” or “materially and adversely”) shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Closing;
(iib) the Seller and the Company Xxxx shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing (including, without limitation, delivery of all agreements, instruments or other documents required to be delivered by Xxxx at or prior to the Closing), except to the extent that such covenants are qualified by the term “material” or contain terms such as “Material Adverse Effect”, “Material Adverse Change” or “materially and adversely”, in which case such Persons shall have performed and complied with all of such covenants (as so written, including the term “material”, “Material Adverse Effect”, “Material Adverse Change” or “materially and adversely”) in all respects through the Closing;
(iiic) there Xxxx shall not be any injunctionhave satisfied its obligations in all material respects under Section 5.2(a);
(d) all waiting or similar periods, judgmentif any, order, decree, ruling or charge in effect preventing consummation of any of under applicable Antitrust Laws relating to the transactions contemplated by this Agreementhereby shall have expired or terminated, and no action, suit, claim or proceeding shall be pending before any Authority which seeks all other material approvals and consents of Governmental Authorities required to prohibit or enjoin the consummation of consummate the transactions contemplated by this Agreement;
(iv) the Seller hereby shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) been obtained and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.effect;
(xe) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), there shall not have learned of any fact or matter that, in occurred a Material Adverse Change; and
(f) the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this AgreementStockholder Approval shall have been obtained. The Purchaser ITOCHU may waive any condition specified in this Section 9(a) 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Acquisition Agreement
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. Buyer ------------------------------------- The obligation of the Purchaser Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 3(a) and Section 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct (and any such representations and warranties that are not so qualified by "materiality" or "Material Adverse Effect" shall be true and correct in all material respects respects) at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Sellers shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling ruling, or charge in effect or threatened preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
(iv) the Seller Sellers shall have delivered to the Purchaser Buyer a certificate to the effect that each of the conditions specified above in Section 9(a)(i7(a)(i)-(ii) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(v) the Seller Buyer shall have delivered received from counsel to the Purchaser a certificate Sellers an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the effect that the conditions specified above in Section 9(a)(i) Buyer, and (ii), dated as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinClosing Date; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ixvi) all consents, waivers, exemptionsapprovals or other action required with connection with the execute, governmental approvalsdelivery and performance of this Agreement ("Consents") by the Sellers and all Consents required of the Company and the Buyer shall have been obtained;
(vii) Knight, regulatory approvals Xxxxxxxx and other Xxxxxxxxx shall have entered into Employment Agreements with the Company substantially in the forms attached as Exhibits E-1, E-2 and E-3 hereto, respectively;
(viii) Xxxxxxx Xxxxxx shall have entered into an employment agreement with the Company in form and substance acceptable to the Buyer;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company;
(x) the Company shall have obtained a release from Xxxxxxx Xxxxxx in form and substance satisfactory to the Buyer;
(xi) all actions that are necessary to be taken by the Sellers in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to the Buyer. The Purchaser Buyer may waive any condition specified in this Section 9(a7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserParent. The obligation of the Purchaser Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 4 and Section 5(a) above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Indemnifying Parties shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iii) there the Company shall not have procured all of the material third-party consents specified in Section 6(b) above;
(iv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any country or jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing charge
would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Parent to own the Company Stock and to control the Company, or (D) affect materially and adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivv) the Seller Company Indemnifying Parties shall have delivered to the Purchaser Parent a certificate to the effect that each of the conditions specified above in Section 9(a)(i8(a)(i)-(iv) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) the Seller all applicable waiting periods (and any extensions thereof) under any applicable merger, trade or competition acts shall have delivered expired or otherwise been terminated and the Parties shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser all of the items under in Section 2(f4(c), Section 5(a)(iii) herein; andand Section 5(b)(ii) above;
(vii) there the Key Employees shall be no payables or receivables between have entered into, and delivered to the Seller Parent, employee offer letters in form and substance as set forth in Exhibit 5 attached hereto and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, same shall be in full force and effect on effect;
(viii) the Parent shall have received from counsel to the Company (or the Company Indemnifying Parties) an opinion (or opinions) in form and substance reasonably satisfactory to it, addressed to the Parent, and dated as of the Closing Date., and such opinion shall specifically opine that the transactions contemplated hereby have been duly authorized by all stockholder action required under the Delaware Act, applicable California law, the Certificate of Incorporation, the bylaws and the Investors' Rights Agreement, that all notices required to be given to shareholders under such laws have been given, that all Stock Options and Warrants have been exercised, cancelled, accelerated, terminated or otherwise have expired and are of no force or effect (except with respect to certain Warrants, which shall no longer be exercisable for any shares or otherwise and that Section 3(b)(ii) above is operative and enforceable in accordance with its terms), and that the Investors' Rights Agreement and the proxy therein is enforceable in accordance with its terms and that the Merger constitutes a "Qualified Corporate Acquisition" as defined therein;
(ix) the Parent shall have received the resignations, effective as of the Closing, of each director and officer of the Company;
(x) the Purchaser Parent shall have received the Company's minute books and stock registries;
(xi) all Stockholders shall have entered into and delivered to the Parent a certificate in the form attached hereto as Exhibit 4 confirming that (A) they are an Accredited Investor and (B) all existing obligations between the Company and such 44 Persons for borrowed money, advances, and other non-salary, non-wage, non-commission and non-bonus arrangements (other than reimbursements for reasonable expenses incurred in connection with the Company's Board of Directors meetings) have been settled and discharged;
(xii) all Stockholders shall have entered into a written consent of the Company's stockholders in form and substance reasonably acceptable to the Parent authorizing the Merger and the transactions contemplated herein, with at least 80% of the Stockholders entering into the consent directly and not by way of the proxy contained in the Investors' Rights Agreement, and the majority of the Company's stockholders of each other class or series of Company Stock required to approve the Merger shall have entered into such written consent resolution, with at least 50% of the Company's stockholder of each class or series except the Company's Series B Preferred Stock entering into the consent directly and not by way of the proxy contained in the Investors' Rights Agreement;
(xiii) all actions to be taken by the Company Indemnifying Parties 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, and as relevant delivered, to the Parent;
(xiv) nothing shall have occurred after the date of this Agreement which, in the Parent's reasonable opinion, would have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Company;
(xv) Parent shall have received from Seller all information available to Seller that is the Company a properly executed statement (in such form as may be reasonably requested by counsel to Parent) conforming to the Purchaser promptly after the date hereof, requirements of Treasury Regulation Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3) and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate Company provide evidence (in which review Seller such form as may be reasonably requested by counsel to Parent) that the Company has delivered to the Internal Revenue Service the notification required under Treasury Regulation Section 1.897-2(h)(2);
(xvi) except for the UCC-1 Financing Statement in favor of BCL Capital relating to leased office equipment, all UCC-1 financing statements naming the Company as debtor shall cooperate)have been terminated or UCC-3 termination statements, duly executed by the secured parties, shall not have learned of been delivered to the Parent with respect to any fact or matter that, Security Interests in the good faith determination Company's assets;
(xvii) all Stock Options and Warrants shall have been exercised, cancelled, accelerated, terminated or otherwise have expired and are of Purchaserno force or effect (except with respect to certain Warrants, causes Purchaser which shall no longer be exercisable for any shares or otherwise);
(xviii) Stockholders holding one hundred percent (100%) of the outstanding Company Series F Preferred Shares as at the Closing shall have tendered delivery of their Company Series F Preferred Shares;
(xix) all individuals receiving Management Bonuses shall have entered into and delivered to be dissatisfied the Parent a certificate confirming that all existing obligations between the Company and such individual for borrowed money, advances and other arrangements (other than salary, wages, commissions, bonuses, expense reimbursements (for reasonable expenses incurred in any material respect the Ordinary Course of Business) and reimbursements for reasonable expenses incurred in connection with the transactions contemplated by this AgreementCompany's Board of Directors meetings) have been settled and discharged; and
(xx) the Company shall have entered into the Certificate of Merger. The Purchaser Parent may waive any condition specified in this Section 9(a8(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Pivotal Corp)
Conditions to Obligation to Close. (a) 7.1 Conditions to Obligation of the Purchaser. The obligation obligations of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified 4 hereof shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iib) the Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiic) there the Seller shall not have procured all of the third party consents specified in Section 6.2 above.
(d) no action, suit, or proceeding shall be pending or threatened before any injunctioncourt or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable judgment, order, decree, ruling stipulation, injunction, or charge in effect preventing would (i) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (ii) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, or (iii) affect adversely the right of the Purchaser to own, operate, or control the Assets (and no such judgment, order decree, stipulation, injunction, or charge shall be in effect);
(ive) the Seller shall have delivered to the Purchaser a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Section 9(a)(i7.1(a)-(d) and (ii), as they pertain to the Seller, have been is satisfied in all respectsrespects and certified resolutions of the respective Boards of Directors of Seller and COREStaff, and, if deemed necessary by Seller, its shareholder, to the effect of Section 4.9;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(xf) the Purchaser shall have received from Seller all information available other authorizations, consents, and approvals of governments and governmental agencies set forth in this Agreement;
(g) all actions to Seller that is requested be taken by the Purchaser promptly after the date hereof, and the Purchaser, upon review Seller in connection with consummation of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be in the form and substance as required by this Agreement; and
(h) The Purchaser shall have received from Seller documents necessary to change Seller's name to "TAI Co." and to terminate Seller's filings in California, Colorado and Arizona regarding the use of assumed, fictitious or tradenames relating to the Business, and a check to cover the filing fees for the same. The Purchaser may waive any condition specified in this Section 9(a) 7 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (International Nursing Services Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) Each of the conditions set forth in the Real Property Purchase Contract shall have been satisfied, and, simultaneously with the Closing, the Purchaser and the Shareholders shall consummate the transactions to be performed by them pursuant to the Real Property Purchase Contract;
(ii) the Purchaser shall be reasonably satisfied with the results of its continuing business, legal, environmental, and accounting due diligence, including, without limitation, its review or evaluation of any matter addressed in any section of the Disclosure Schedule regarding the Seller and the Cattle Business;
(iii) the representations and warranties set forth in Section Article 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iiiv) each of the Seller Seller, Shareholders, and the Company Key Employees shall have performed and complied with all of their respective its, his or her covenants hereunder in all material respects through the Closing;
(iiiv) there the Seller shall not have procured all of the material third party consents specified in Section 5(b) above;
(vi) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;Agreement to be rescinded following consummation, or (C) affect adversely the right of the Purchaser to own the Purchased Assets and operate the Cattle Business.
(ivvii) the Seller shall have paid all Income Taxes and Sales Taxes owed by the Seller, as set forth in Section 3(k) of the Disclosure Schedule.
(viii) the Seller shall have delivered to the Purchaser a certificate executed by its President to the effect that each of the conditions specified above in Section 9(a)(i6(a)(iii)-(vi) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viiiix) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaserreceived all other material authorizations, consents, and the Purchaser shall have satisfied all approvals of the conditions precedent governments and governmental agencies referred to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.in Section 3(c) and Section 4(c) above;
(ixx) all consents, waivers, exemptions, governmental approvals, regulatory approvals the employment agreements as set forth in Exhibits A-1 and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, A-2 attached hereto shall be in full force and effect on (or will be in full force and effect as of the Closing Date.);
(xxi) the Purchaser Seller shall have received from Seller all information available provided to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review at the Purchaser's sole cost and expense, audited balance sheets and statements of such matters related to income, changes in stockholders' equity, and cash flow as of and for the fiscal years ended December 31, 1997, 1998 and 1999 for the Seller, its assets, liabilities, which financial condition, business, prospects or relations statements (including the notes thereto) shall be prepared in accordance with third parties as it shall deem necessary or appropriate GAAP applied on a consistent basis throughout the periods covered thereby; and
(in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser xii) all actions to be dissatisfied taken by the Seller, Shareholders, and Key Employees in any material respect connection with consummation of the transactions contemplated by this Agreementhereby 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 Purchaser. The Purchaser may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Emerge Interactive Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of Seller and set forth in Section 3 4 above that are qualified as to their materiality or to and the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified Company in Section 5 above shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there Seller and Company, as necessary, shall not have procured all of the third party consents required or asked of it in order to effect the Closing;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Shares and to eventually control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivv) the Seller shall have delivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i11(a)(i)-(iv) and (ii), as they pertain to the Seller, have been is satisfied in all respects, and (B) as of the Closing, the Company has only those Liabilities listed in Exhibit “A” or modified as indicated Schedule A hereto;
(vvi) Purchaser shall have completed the business, accounting and legal due diligence review of the Company, and the results thereof shall be satisfactory to Purchaser, its officers and directors;
(vii) the Company shall have delivered its Articles of Incorporation and By-Laws, each as amended to the Closing Date, certified by the Secretary of the Company, resolutions adopted by the Board of Directors of Seller authorizing this Agreement and the transactions contemplated hereby certified by the Secretary of the Seller, and Seller shall have delivered to the Purchaser a certificate Purchaser, to the effect that the conditions specified above in Section 9(a)(i) and (ii)extent available, as they pertain to copies of the Company, have been satisfied in ’s original minute book and corporate seal and all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinother original corporate documents and agreements; and
(viiviii) there shall all actions to be no payables or receivables between the taken by Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be satisfactory in form and substance to Purchaser. The Purchaser may waive any condition specified in this Section 9(a11(a) if it executes a writing so stating at or prior to the ClosingClosing in a writing executed by the Purchaser.
Appears in 1 contract
Samples: Stock for Stock Exchange Agreement
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserBuyer's Obligation. The Buyer's obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
: (i) the representations and warranties set forth in Section 3 3(a) and Section 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement);
Date; (ii) the Seller and the Company Parent shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
; (iii) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (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, (C) adversely affect the right of Buyer to own the Target Interests and to control Target, or (D) materially and adversely affect the right of Target to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (iv) Parent shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(iii) is satisfied in all respects; (v) the Parties shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above; (vi) Buyer shall have received the resignations, effective as of the Closing, of each director or manager and officer of Target; (vii) Buyer shall have received evidence that the Lawriter and the Casemaker trademarks now being used by Target are owned and titled to Target; (viii) all actions to be taken by Parent 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 Buyer; (ix) Parent shall have delivered to Buyer a copy of the certificate of formation, including all amendments to date, of Target, certified on or soon before the Closing Date by the Secretary of State of the jurisdiction of Target’s formation; Page 19 Exhibit 11.1 (x) Parent shall have delivered to Buyer copies of the certificate of existence of Target, issued on or soon before the Closing Date by the Secretary of State of the jurisdiction of Target’s organization; (xi) Pursuant to Section 11(d) of the 2008 Purchase Agreement, Sellers shall have consented in writing to the transactions contemplated under this Agreement, including the assumption by Buyer of those liabilities of Parent to Sellers under Section 2(b)(ii) hereof; (xii) That certain Contract of Sale by and among Parent, Target and Lawcorp dated as of April 1, 2009 shall have been fully performed by Parent and Target, and all rights of the parties released thereto; (xiii) Parent or Target shall have satisfied in full all outstanding payment obligations of Target for legal services owed to Xxxxxx, Xxxxxx and Xxxxxxx, LLC related to the defense of the JuriSearch litigation; (xiv) Buyer, Target and OSBA shall have entered into an Escrow Agreement securing those OSBA obligations assumed by Buyer from Parent pursuant to Section 2(b)(ii) hereof; (xv) [Intentionally left blank] (xvi) Parent and Target shall have entered into a License Agreement for the Parent Assets; (xvii) That certain license agreement with VersusLaw shall have been assigned by Parent to Target; (xviii) Target shall have been released of any and all of its obligations to Alpha Capital Anstalt (“Anstalt”), including, without limitation, that certain Guaranty and Security Agreement entered into by and among Target, Anstalt and others dated March 4, 2009; (xix) Target shall have been released of any and all of its obligations to the Sellers under the 2008 Purchase Agreement, except for the Security Agreement; (xx) All intercompany liabilities between Target and Parent will be converted to capital contributions or otherwise released, including but not limited to, those certain loans in the approximate aggregate amount of $100,000.00 made by Parent to Target; (xxi) Buyer shall have approved that certain schedule of payments and flow of funds submitted by Parent to Buyer; and (xxii) Parent shall have made such other deliveries as are described as being its responsibility in Section 2(e) above. Buyer may waive any condition specified in this Section 7(a) if it executes a writing so stating at or prior to the Closing. (b) Conditions to Parent’s Obligation. Parent’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in Section 3(b) above shall be true and correct in all material respects at and as of the Closing Date; (ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; Page 20 Exhibit 11.1 (iii) there shall not be any injunction, judgment, order, decree, ruling ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
; (iv) the Seller Buyer shall have delivered to the Purchaser Parent a certificate to the effect that each of the conditions specified above in Section 9(a)(i7(b)(i)-(iii) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
; (v) the Seller Parties, Target, and its Subsidiaries shall have delivered received all authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii3(a)(ii), as they pertain to the CompanySection 3(b)(ii), have been satisfied in all respects;
(viand Section 4(c) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinabove; and
(vii) there shall all actions to be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary taken by Buyer in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Parent; (viii) the dismissal with prejudice by this AgreementJuriSearch of that certain lawsuit brought by JuriSearch against Target and Parent and the execution of a release by JuriSearch of any and all claims relating thereto; and (ix) Buyer shall have made such other deliveries as are described as being its responsibility in Section 2(e) above. The Purchaser Parent may waive any condition specified in this Section 9(a7(b) if it executes a writing so stating at or prior to the Closing. Section 8. Remedies for Breaches of This Agreement. (a) Survival of Representations and Warranties. All of the representations and warranties of Parent contained in Section 4 above shall survive the Closing hereunder (unless Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect for a period of twenty four (24) months thereafter. All of the representations and warranties of the Parties contained in Section 3 above shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of limitations).
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserTACC’s Obligation. The obligation of the Purchaser TACC to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as though made then “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Inventors shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Inventors shall have performed and complied with all of such covenants in all respects through the Closing;
(iii) there Inventors shall not have, if necessary, procured all of the third-party consents specified in Sections 5(b) above;
(iv) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
Agreement to be rescinded following consummation, and, (ivC) adversely affect the Seller shall have delivered right of TACC to acquire the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respectsAcquired Assets;
(v) the Seller shall have delivered all actions to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary taken by Inventors in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to TACC and shall be in full force and effect delivered to TACC on or before the Closing Date.; and
(xvi) the Purchaser Inventors shall have received from Seller performed all information available necessary actions to Seller that is requested by transfer legal title of the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior Acquired Assets to the Closingname of TACC.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Tactical Services Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of I-trax and the PurchaserHolding Company. The obligation of I-trax and the Purchaser Holding Company to consummate the transactions to be performed by it each of them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 4 and Section 6 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Members shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there MyFamilyMD and its Subsidiaries shall not have procured all of the third party consents specified in Section 7(b) above;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect materially and adversely the right of the Holding Company to own MyFamilyMD Interests and to control MyFamilyMD and its Subsidiaries, or (D) be deemed a Material Adverse Event;
(ivv) the Seller Members shall have delivered to the Purchaser I-trax a certificate to the effect that each of the conditions specified above in Section 9(a)(i9(a)(i)-(iv) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) the Seller Merger shall have delivered been effected pursuant to the Purchaser all Merger Agreement;
(vii) the Holding Company and Xxxxxx X. Xxxxx shall have entered into an Employment Agreement in the form attached hereto as Exhibit D;
(viii) I-trax and the Holding Company shall have received from counsel to the Members an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to I-trax and the Holding Company, and dated as of the items Closing Date;
(ix) the Holding Company and the Members shall have entered into a Registration Rights Agreement in the form attached hereto as Exhibit G;
(x) the Holding Company shall have received the resignations, effective as of the Closing, of each director, manager and officer of MyFamilyMD and its Subsidiaries other than those whom I-trax shall have specified in writing at least five (5) business days prior to the Closing;
(xi) all outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require MyFamilyMD to issue, sell, or otherwise cause to become outstanding any of its equity interests identified in Section 6(b) of the Disclosure Schedule shall have been exercised or terminated and cancelled;
(xii) all outstanding or authorized equity appreciation, phantom stock, profit participation, or similar rights with respect to MyFamilyMD identified in Section 6(b) of the Disclosure Schedule shall have been terminated and cancelled;
(xiii) the Holding Company shall have received a statement from MyFamilyMD in form satisfactory to Holding Company, signed by the Members under penalties of perjury no earlier than 30 days before the Closing Date, certifying (A) that fifty percent (50%) or more of the value of the gross assets of MyFamilyMD does not consist of "U.S. real property interests" (as defined in Section 2(f897(c) hereinof the Code, hereinafter "USRPI") and (B) that ninety percent (90%) or more of the value of the gross assets of MyFamilyMD does not consist of USRPI, cash and cash equivalents;
(xiv) the Registration Statement shall have been declared effective by the SEC;
(xv) the Members shall have complied with their obligations under Paragraphs 1, 5 and 6 of that certain side letter agreement entered into as of the date hereof (the "Side Letter") by and among the Members, MyFamilyMD and I-trax; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ixxvi) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary to be taken by the Members in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to I-trax and the Holding Company. The Purchaser I-trax and/or the Holding Company may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (I Trax Com Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. Buyers The obligation of the Purchaser Buyers to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 §3(a) above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company no action, suit, or proceeding shall have performed and complied with all be pending before any court or quasi-judicial or administrative agency of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Buyers to own the Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iviii) the Seller shall have delivered to the Purchaser Buyers a certificate to the effect that each of the conditions specified above in Section 9(a)(i§7(a)(i)-(ii) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(viv) the Seller Parties shall have delivered to entered into the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinLicense Agreement; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viiiv) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser Buyers shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than one director specified by Seller which director shall hold office for a minimum of one year from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, of closing and the Purchaser, upon review of such matters related to Seller, then hold office until Target holds its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreementannual meeting. The Purchaser Buyers may waive any condition specified in this Section 9(a§6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Innovative Software Technologies Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserPurchaser and the Purchaser ----------------------------------------------------------- Subsidiary. The obligation of each of the Purchaser and the Purchaser ---------- Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by Purchaser or Purchaser Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all third-party consents specified in (S)5(b) above which are applicable to the Target and its Subsidiaries;
(iii) the representations and warranties set forth in Section 3 (S)3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date Date, except for (as though made then and as though the Closing Date were substituted for the date of A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iiiv) the Seller and the Company Target shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiiv) there shall not be neither any injunctionstatute, judgmentrule, regulation, order, decree, ruling stipulation or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding injunction (each an "Order") shall be pending before enacted, promulgated, ----- entered, enforced or deemed applicable to the Merger nor any Authority other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which seeks to prohibit or enjoin prohibits the consummation of the transactions contemplated by this Agreementthe Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal; or (D) which imposes material limitations on the ability of the Purchaser or the Purchaser Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by the Purchaser on all matters properly presented to the Target Stockholders; or (E) which imposes any limitations on the ability of the Purchaser or the Purchaser Subsidiary, or any of their respective Subsidiaries, effectively to control in any material respect the business or operations of the Target or any of its Subsidiaries;
(ivvi) the Seller Target shall have delivered to the Purchaser and the Purchaser Subsidiary a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S)6(a)(i)-(S)6(a)(iv) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
; provided, however, with respect to (v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (iiS)6(a)(i), as they pertain the Target shall only be required -------- ------- to certify that this Agreement and the Company, have been satisfied in all respects;
(vi) Merger received the Seller shall have delivered to the Purchaser all Requisite Stockholder Approval of the items under Section 2(f) herein; andTarget Stockholders;
(vii) there all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall be no payables have expired or receivables between the Seller otherwise been terminated, and the Company or between Affiliates Parties shall have received all other material authorizations, consents and approvals of the Seller governments and the Company.governmental agencies referred to in (S)3(d) and (S)4(d) above;
(viii) the Purchaser Purchase Warrant shall have obtained financing to implement been exercised in full, provided, that such exercise may be conditioned upon the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to effectiveness of -------- the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.Merger;
(ix) all consentsthe Purchaser Shares to be issued in the Merger shall have been approved upon official notice of issuance for quotation on Nasdaq, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation subject to official notice of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.issuance; and
(x) the Purchaser Registration Statement shall have received from Seller all information available to Seller that is requested been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC. Subject to the provisions of applicable law, the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter thatSubsidiary may waive, in the good faith determination of Purchaserwhole or in part, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a(S)6(a) if it executes they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Primus Telecommunications Group Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge Seller shall have procured all of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct material third party consents necessary in all material respects at and as of order to consummate the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)transactions described herein;
(ii) the Seller and the Company no action, suit, or proceeding shall have performed and complied with all be pending before any court or quasi-judicial or administrative agency of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of (B) cause the transactions contemplated by this AgreementAgreement to be rescinded following consummation, or (have a material adverse effect on the right of the Purchaser to own the Purchased Assets and operate the Rollover Business;
(iv) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(xiii) the Purchaser shall have received from all material authorizations, consents, and approvals of governments and governmental agencies necessary in order to consummate the transactions described herein;
(iv) an opinion of legal counsel for the Seller and the Shareholders in substantially the form set forth in Exhibit G attached hereto;
(v) all information available actions to Seller that is requested be taken by the Purchaser promptly after Seller and the date hereofShareholder 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 Purchaser; and
(vi) the Purchaser, upon review acting in good faith, shall be reasonably satisfied with the results of such matters related to Sellerits continuing business, legal, environmental, and accounting due diligence, including, without limitation, its assets, liabilities, financial condition, business, prospects review or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned evaluation of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied addressed in any material respect with section of the transactions contemplated by this AgreementDisclosure Schedule regarding the Company. The Purchaser may waive any condition specified in this Section 9(a5(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Emerge Interactive Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserCONDITIONS TO OBLIGATION OF XXXXX ENTERPRISES AND THE XXXXX STOCKHOLDERS. The obligation of Xxxxx Enterprises and the Purchaser Xxxxx Stockholders to consummate the transactions to be performed by him, her or it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 Sections 3(a) and (b) above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (other than representations and warranties which speak as though made then of another date, which shall be true and correct as though the Closing Date were substituted for the date of this Agreementsuch date);
(ii) the Seller Turecamo Stockholders and the Company Turecamo Entities shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there the Turecamo Stockholders and the Turecamo Entities shall not have procured all of the material third party consents specified in Section 4(b)(i) and (vi) to be procured by them;
(iv) the Parties shall have received all other material authorizations, consents, and approvals of the Governmental Authorities referred to in Section 4(b), and none of the terms or conditions of any injunctionsuch authorization, judgment, order, decree, ruling consent or charge in effect preventing approval shall (A) prevent consummation of any of the transactions contemplated by this AgreementAgreement or by the Ancillary Agreements, (B) cause any of the transactions contemplated by this Agreement or by the Ancillary Agreements to be rescinded following consummation, (C) affect materially adversely the right of Xxxxx Enterprises to own the Turecamo Stock, the Xxxxx Stock or the stock of any of the Subsidiaries of Xxxxx and to control any of the Turecamo Entities, Xxxxx, Xxxxx Enterprises or any Subsidiaries of Xxxxx (or any of their respective assets), (D) affect materially adversely the right of any of the Turecamo Entities, Xxxxx or any Subsidiaries of Xxxxx or Xxxxx Enterprises to own its assets and to operate its businesses, or (E) be materially burdensome to Xxxxx Enterprises or any of its Subsidiaries or any of the Turecamo Entities;
(v) no action, suit, claim or proceeding shall be pending or, to the Knowledge of the Parties, threatened before any Governmental Authority which seeks 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 or by the Ancillary Agreements, (B) cause any of the transactions contemplated by this Agreement or by the Ancillary Agreements to prohibit be rescinded following consummation, (C) affect materially adversely the right of Xxxxx Enterprises to own the Turecamo Stock, the Xxxxx Stock or the stock of any of the Subsidiaries of Xxxxx and to control any of the Turecamo Entities, Xxxxx, or any Subsidiaries of Xxxxx (or any of their respective assets), (D) affect materially adversely the right of any of the Turecamo Entities, Xxxxx or any Subsidiaries of Xxxxx or Xxxxx Enterprises to own its assets and to operate its businesses, or (E) be materially burdensome to Xxxxx Enterprises or any of its Subsidiaries or any of the Turecamo Entities (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(vi) the Turecamo Stockholders and the Turecamo Entities shall have delivered to Xxxxx Enterprises certificates of each Turecamo Stockholder (as to such Turecamo Stockholder) and an officers' certificate of the Chairman, President and Chief Financial Officer (in such capacity and not individually) of each Turecamo Entity to the effect that each of the conditions specified above in Section 6(a)(i)-(v) is satisfied in all respects;
(vii) no action shall have been instituted by the Department of Justice or Federal Trade Commission or any state attorney general or other state official having jurisdiction challenging or seeking to enjoin the consummation of the transactions contemplated by this Agreementhereby, which action shall not have been withdrawn or terminated;
(ivviii) each of Xxxxxxx X. XxXxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx and Xxxx Xxxxxxxx shall have executed an employment and non-competition agreement in the form of Exhibits C-1 through C-4, respectively, hereto;
(ix) Xxxxx Enterprises shall have received from Xxxxxxxx & Xxxxxxxx, counsel to the Turecamo Stockholders and the Turecamo Entities, and from Georgia counsel and maritime counsel reasonably acceptable to Xxxxx Enterprises, opinions in form and substance as set forth in Exhibit D attached hereto, addressed to Xxxxx Enterprises, and dated as of the Closing Date;
(x) Xxxxx Enterprises shall have received, at Xxxxx Enterprises' expense, from environmental consultants, environmental assessments with respect to the present and former businesses and real property (owned and leased) of the Turecamo Entities located in Charleston, South Carolina and Savannah, Georgia, in substance reasonably satisfactory to Xxxxx Enterprises, provided that Xxxxx Enterprises shall not have any drilling or testing performed at such locations without the prior consent of the Turecamo Entities (it being understood that, upon request by the Turecamo Entities, Xxxxx Enterprises shall, prior to Closing, provide updates of the progress of any such assessments);
(xi) Xxxxx Enterprises shall have received, at Xxxxx Enterprises' expense, from consultants, engineers or employees of Xxxxx Enterprises, assessments with respect to the Turecamo Vessels in substance reasonably satisfactory to Xxxxx Enterprises;
(xii) there shall not have been any occurrence, event, incident, action, failure to act, or transaction since the Most Recent Fiscal Year End which has had or is reasonably likely to cause a Turecamo Material Adverse Effect;
(xiii) by September 21, 1998, Xxxxx Enterprises shall have completed its business, accounting and legal due diligence review of the Turecamo Entities and the Turecamo Business, including contacts with key customers, and the results thereof shall be reasonably satisfactory to Xxxxx Enterprises;
(xiv) the Seller Turecamo Entities and the lessor of the Leased Real Property located in Savannah, Georgia shall have entered into a new, arms'-length lease reasonably satisfactory in form and substance to Xxxxx Enterprises, and sufficient to evidence such lease of record;
(xv) Xxxxx Enterprises shall have received such pay-off letters, termination statements, releases of ship mortgages and other releases to be delivered against repayment by Xxxxx Enterprises of the Indebtedness of the Turecamo Entities as it shall have reasonably requested, all in form and substance satisfactory to the lender(s) to Xxxxx Enterprises (in their sole discretion) and reasonably satisfactory to Xxxxx Enterprises (it being understood that no such pay-off letters, termination statements and releases shall be required to be delivered in the absence of repayment by Xxxxx Enterprises of the relevant underlying Indebtedness of the Turecamo Entities; PROVIDED, HOWEVER, that in no event shall this Section 6(a)(xv) be construed to require repayment by the Turecamo Entities or Xxxxx Enterprises of any guarantees by any of the Turecamo Entities of any Indebtedness or other obligations of the Related Parties, as to which Section 6(a)(xxv) shall apply);
(xvi) Xxxxx Enterprises shall have received UCC, judgment lien and tax lien searches with respect to the Turecamo Stockholders and the Turecamo Entities, the results of which indicate no liens on the Turecamo Stock or on the assets of the Turecamo Entities (it being understood that if the results of lien searches reveal liens with respect to Indebtedness of the Turecamo Entities that will be paid off and terminated at Closing (all such Indebtedness listed on Sections (m) and (n) of the Turecamo Disclosure Schedule) or liens which are satisfactory to the lender(s) to Xxxxx Enterprises in their sole discretion, the presence of such liens shall not negate satisfaction of this condition 6(a)(xvi));
(xvii) each of the Turecamo Entities shall have delivered to (i) copies of the Purchaser a certificate Certificate of Incorporation of each Turecamo Entity, including all amendments thereto, certified by the Secretary of State of the state of its jurisdiction of incorporation; (ii) certificates from the Secretary of State of the state of its jurisdiction of incorporation to the effect that each Turecamo Entity is in good standing and subsisting in such jurisdiction and listing all charter documents of the conditions specified above Company on file in Section 9(a)(isuch state; (iii) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate from the Secretary of State or other appropriate official in each state in which each Turecamo Entity is qualified to do business to the effect that the conditions specified above each Turecamo Entity is in Section 9(a)(i) good standing in such state; and (ii), iv) a certificate as they pertain to the CompanyTax status of each Turecamo Entity from the appropriate official in the state of its jurisdiction of incorporation and each state in which each Turecamo Entity is qualified to do business, have been satisfied in all respects;
(vi) the Seller shall have delivered each case, dated as of a date not more than five days prior to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(xxviii) Xxxxx Enterprises shall have obtained on terms and conditions reasonably satisfactory to Xxxxx Enterprises financing in the amount set forth in the draft Commitment Letter, dated July 9, 1998, attached hereto as Schedule 6(a)(xviii).
(xix) Columbia Coastal shall have executed and delivered a right of first refusal agreement, in form and substance reasonably satisfactory to Xxxxx Enterprises, pursuant to which Columbia Coastal shall agree that Xxxxx Enterprises and its Subsidiaries shall have a first refusal right to provide all of the tug services requirements of Columbia Coastal on market terms (it being understood that neither Xxxxx Enterprises nor Xxxxx have reviewed the Towage Agreement between Columbia Coastal Transport and Maritime, as executed by Maritime on June 15, 1998 and countersigned by Columbia Coastal Transport on July 27, 1998, and that they do not hereby acknowledge whether such Towage Agreement is reasonably satisfactory and that it is possible that such right of first refusal agreement may amend, supplement, replace or terminate such Towage Agreement);
(xx) the Purchaser relevant parties shall have executed amendments, waivers or terminations of any Contracts listed on Section (o) and Section (v) of the Turecamo Disclosure Schedule in order to ensure that such Contracts are on arms'-length terms or are terminated, as applicable;
(xxi) each Turecamo Stockholder and the Escrow Agent (as applicable) shall have executed and delivered the Stockholders Agreement, the Cash Escrow Agreement and the Stock Escrow Agreement and each Turecamo Stockholder (and each spouse thereof who is an employee of a Turecamo Entity), Columbia Coastal, Turecamo Properties, Ltd. and a newly formed Turecamo entity (the "DISTRIBUTION ENTITY", and together with each Turecamo Stockholder, Columbia Coastal, and Turecamo Properties, Ltd., the "RELATED PARTIES") shall have executed a Release in the form of Exhibit E attached hereto;
(xxii) the Restated Certificate shall have been accepted for filing by the Secretary of State of the State of Delaware;
(xxiii) the Balance Sheet Distributions shall have been effected in a manner and pursuant to the agreements (collectively, the "DISTRIBUTION AGREEMENT") reasonably satisfactory to Xxxxx Enterprises, including that the assets being distributed are accepted by the Distribution Entity, subject to all Liabilities associated therewith;
(xxiv) Xxxxx Enterprises shall be reasonably satisfied that neither Xxxxx Enterprises nor any of the Turecamo Entities will be subject to or responsible for any Excluded Liabilities (it being understood that, upon request by the Turecamo Entities, Xxxxx Enterprises shall, prior to Closing, provide updates as to the progress of any analysis of the Excluded Liabilities);
(xxv) the relevant Related Parties, the Turecamo Entities and the relevant lending institutions or counterparties shall have executed and delivered releases or terminations, at no cost to the Turecamo Entities or to Xxxxx Enterprises, with respect to all guarantees of Indebtedness or other obligations of the Related Parties by the Turecamo Entities;
(xxvi) all agreements between the Related Parties and the Turecamo Entities or among the Related Parties, the Turecamo Entities and any third party (other than agreements delivered at the Closing or agreements for the provision of services at arms-length terms or pursuant to the agreement referred to in clause (xix) above) shall have been terminated;
(xxvii) Xxxxx Enterprises and the Turecamo Entities shall have received written confirmation, in form and substance reasonably satisfactory to Xxxxx Enterprises, from Seller all information available Columbia Coastal that the Turecamo Entities do not owe any amounts to Seller Columbia Coastal as of the Closing, except for amounts that is requested may be owed to Columbia Coastal in connection with the claims or litigation disclosed on Exhibit A to the Release by Columbia Coastal attached as Exhibit E hereto;
(xxviii) the Purchaser promptly after White Stack Stockholders' Agreement, dated December, 1983, among the date hereofTurecamo Stockholders, and shall have been terminated;
(xxix) any advance to Xxxx Xxxxxxxx, Xx. or any Related Party shall have been paid in full, or arrangements for the Purchaser, upon review payment in full of such matters related amount at the Closing shall have otherwise been made;
(xxx) Xxxxx Enterprises shall have received acknowledgement from the Turecamo Entities that the insurance policies listed in Section (q) of the Turecamo Disclosure Schedule will continue in full force and effect after giving effect to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate the transactions contemplated hereby (in which review Seller shall cooperate), shall not have learned of any fact or matter thator, in the good faith determination case of PurchaserProtection and Indemnity and Hull insurance, causes Purchaser substantially equivalent replacement coverage reasonably satisfactory to Xxxxx Enterprises shall be in effect); and
(xxxi) all actions to be dissatisfied taken by the Turecamo Stockholders and the Turecamo Entities in any material respect connection with consummation of the transactions contemplated by this Agreementhereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Xxxxx Enterprises. The Purchaser Xxxxx Enterprises and the Xxxxx Stockholders may waive any condition specified in this Section 9(a6(a) if it executes they execute a writing written instrument so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to of Obligation of the Purchaser. Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) each of the Seller and Pre-Closing Covenants set forth above shall have been satisfied;
(iii) the Company Selling Parties shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiiv) there no action, suit, or proceeding shall not 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 ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
would (ivA) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the prevent consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(xB) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review cause any of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Selling Parties Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viii) The Purchaser shall have received the resignations, effective as of the Closing Date, of each officer and Director of the Company, currently R. Xxxxxx Xxxx and Xxxxxxx Xxxxxxx and the appointment of the designee(s) of the Purchaser. In addition, each officer and director shall waive any accrued compensation if any due said officers and directors as of the closing date. Said resignations shall be effective 10 days after the Purchaser files a Form 14f with the Securities and Exchange Commission.
(ix) Except as otherwise set forth in this Agreement. , there shall not have been any occurrence, event, incident, action, failure to act, or transaction which has had or is reasonably likely to cause a material adverse effect on the business, assets, properties, financial condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall deliver to selling parties a Certificate of Good Standing of the Purchaser issued by the Nevada Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xii) all actions to be taken by the Selling Parties 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 satisfactory in form and substance to the Purchaser; and The Purchaser may waive any condition specified in this Section 9(a13(a) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Purchaser.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserDS&P and Acquisition. The obligation of the Purchaser DS&P and Acquisition to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) other than the representations and warranties set forth in 4(k), the representations and warranties set forth in Section 3 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company Xxxxxx shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iii) there Xxxxxx and its Subsidiaries shall not have procured all of the third party consents specified in Section 5(b) above, all of the title insurance commitments, policies, and riders specified in Section 5(h) above, and all of the Surveys specified in Section 5(i) above;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of DS&P to own the shares of the Surviving Corporation and to control Xxxxxx and its Subsidiaries, or (D) affect adversely the right of any of Xxxxxx 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);
(ivv) the Seller representations and warranties set forth in Section 4(k) shall be true and correct in all material respects as of the Closing Date; provided that, if prior to Closing, (i) an audit is commenced by any taxing authority, a Tax or adjustment is asserted by any taxing authority, or an error is discovered relating to any Return that was or should have been filed by Xxxxxx for which the statute of limitations is not closed and the maximum amount of Tax that Xxxxxx or the Surviving Corporation could owe as a result thereof is less than $750,000 or (ii) the Closing Basis is $28,000,000 or more, then the representations and warranties in Section 4(k) shall be deemed not to have been breached, and the Tax Liability Reserve will be increased as provided herein;
(vi) Xxxxxx shall have delivered to the Purchaser DS&P a certificate to the effect that each of the conditions specified above in Section 9(a)(i6(a)(i)-(v) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(vvii) all applicable waiting periods (and any extensions thereof) under the Seller Xxxx-Xxxxx-Xxxxxx Act shall have delivered expired or otherwise been terminated and the Parties shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i4(c) and (ii), as they pertain to the Company, have been satisfied in all respectsabove;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser relevant parties shall have obtained financing to implement the transactions provided for entered into Employment Agreements contemplated in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.Section 5(k);
(ix) DS&P shall have received from Xxxxxx'x corporate and bankruptcy counsel opinions in form and substance as set forth in Exhibit D attached hereto, addressed to DS&P, Acquisition and Lender and dated as of the Closing Date;
(x) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary to be taken by Xxxxxx 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 DS&P;
(xi) the Plan, the Confirmation Order, and the Liquidating Trust documents shall be in form and substance satisfactory to DS&P in its reasonable discretion and in accordance with Section 7 below;
(xii) no Material Adverse Change in Xxxxxx'x or its Subsidiaries' business, results of operations, financial condition, assets, liabilities or prospects has occurred since the Most Recent Balance Sheet;
(xiii) the Confirmation Order has become a Final Order;
(xiv) the Surviving Corporation shall have obtained the New Debt Financing;
(xv) the New Debt Financing shall be available pursuant to documents which are satisfactory to DS&P and Acquisition in their sole discretion;
(xvi) Xxxxxx shall provide DS&P with a list and copy of all confidentiality agreements not previously disclosed to DS&P prior to Closing;
(xvii) at least two business days prior to the Closing, Xxxxxx shall provide DS&P a schedule setting forth the following information on an estimated pro forma basis giving effect to the consummation of the transactions contemplated by this Agreement, shall be in full force herein for Xxxxxx and effect on its Subsidiaries: (A) the Closing Date.
Basis; (xB) the Purchaser shall have received from Seller all information available to Seller that is requested by amount of any net operating loss carryover; (C) the Purchaser promptly after the date hereof, amount of cancellation or indebtedness income and the Purchaserother income, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects gain or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with loss resulting from the transactions contemplated herein including, but not limited to, the disposition of assets or stock of any Subsidiary and, if requested by DS&P or Acquisition, the additional information included in Section 4(k)(vi) not included in this AgreementSection 6(a)(xii);
(xviii) at least two business days prior to the Closing, Xxxxxx shall provide to DS&P, in form satisfactory to DS&P, (A) a written reconciliation of the trust records for the 401(k) Plan with the participant statement records, (B) a schedule, by each 401(k) Plan participant, of each participant who has or had Xxxxxx Shares in a Restricted Stock Account, the number of Xxxxxx Shares in such account, the cost basis to such participant of each Xxxxxx Share, the amounts distributed to the participant from such account, and an explanation of how the amount of any distribution was determined, and (C) any other information necessary to calculate the amounts to be paid to the 401(k) Plan under Section 2(f)(ii);
(xix) Xxxxxx shall have caused the litigation known as SouthTrust Bank, N.A. x. Xxxxxx Color-Fi, Inc., Bankruptcy Case No. The Purchaser 98-10145W to be terminated, resolved or settled in a manner which is fully satisfactory to DS&P in its reasonable discretion; and
(xx) that certain Agreement between JFM and Xxxxxx dated February __, 2000 is approved by the Bankruptcy Court, or, if such agreement is not approved by the Bankruptcy Court, the Plan and the Final Order shall state that the Surviving Corporation shall have no liabilities or obligations with respect to JFM and that all liabilities or obligations owed to JFM by Xxxxxx shall be satisfied solely by the Plan Administrator from the Preliminary Purchase Price. DS&P may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserI-trax, Acquisition and Acquisition LLC. The obligation of the Purchaser I-trax, Acquisition and Acquisition LLC to consummate the transactions to be performed by it each of them respectively in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the First Merger shall have received the Requisite Stockholder Approval;
(ii) CHDM 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 Sections 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for aggregate negative financial impact of all matters or events added to the CHDM Disclosure Schedule since the date of execution of this Agreement)Agreement must not exceed $250,000;
(iiiv) the Seller and the Company CHDM shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiiv) there no action, suit, or proceeding shall not be pending or threatened against CHDM or any of its Subsidiaries 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 in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of I-trax to own the capital stock of the First Merger Surviving Corporation and all of the equity interest of the Second Merger Surviving Company and to control the First Merger Surviving Corporation and the Second Merger Surviving Company, or (D) affect adversely the right of each of CHDM 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);
(ivvi) the Seller CHDM shall have delivered to the Purchaser I-trax a certificate to the effect that each of the conditions specified above in Section 9(a)(i6(a)(i)-(v) and (ii), as they pertain to the Seller, have been satisfied in all respects, together with a exhibit identifying all amendments to the CHDM Disclosure Schedule;
(vvii) the Seller CHDM shall have delivered to the Purchaser I-trax a certificate of CHDM's Secretary attaching, and certifying that each such attachment is true, correct, complete and in effect on the Closing Date: (A) CHDM's Certificate of Incorporation, (B) CHDM's Bylaws, (C) resolutions of the Board of Directors of CHDM with respect to all transactions contemplated by this Agreement; and (D) resolutions or minutes of meeting of CHDM Stockholders approving this Agreement and the First Merger, and (E) a good standing certificate issued by the Secretary of State of the State of Delaware date not more than five days prior to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsClosing Date;
(viviii) the Seller CHDM shall have delivered to the Purchaser I-trax a certificate stating that each officer of CHDM executing this Agreement and all related agreements and certificates is an incumbent officer of CHDM;
(ix) CHDM, I-trax and Acquisition shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Sections 5(b) and 5(c) above;
(x) I-trax shall have received from counsel to CHDM an opinion in form and substance as set forth in Exhibit I attached hereto, addressed to I-trax and dated as of the items Closing Date;
(xi) I-trax shall have received the resignations, effective as of the Closing, of each director of CHDM, and of each officer of CHDM other than those whom I-trax shall have specified, after consultation with CHDM, in writing at least five business days prior to the Closing;
(xii) I-trax shall have closed the sale of I-trax Preferred Shares the gross proceeds of which are not less than $15,000,000 pursuant to the agreements referred to in Section 5(e) above;
(xiii) I-trax shall have filed the I-trax Preferred Designations with the Secretary of State of the State of Delaware;
(xiv) Acquisition LLC and each employee of CHDM deemed key in the reasonable discretion of I-trax and CHDM Representative shall have entered into employment agreements on mutually acceptable terms;
(xv) I-trax, the CHDM Representative and the Escrow Agent shall have entered into the Escrow Agreement in form and substance substantially as attached hereto as Exhibit E hereto;
(xvi) CHDM shall have delivered a certificate of CHDM's Chief Financial Officer stating the cash balance of CHDM and its Subsidiaries as of the Closing Date computed in accordance with Section 2(b) above;
(xvii) I-trax shall have determined, in the exercise of its reasonable judgment, that issuance of I-trax Common Shares and I-trax Preferred Shares will qualify for exemption from registration under Section 2(f4(2) hereinof the Securities Act and the regulations promulgated thereunder;
(xviii) I-trax and CHDM shall have closed on a senior loan facility pursuant to which not less than $16,000,000 is available to be borrowed by I-trax and CHDM on the Closing Date;
(xix) The waiting period applicable to the consummation of the Merger under the Hart-Scott-Rodino Act shall have expired or been terminated;
(xx) CHDM and its Subsidiaries shall have caused any of its employee that have borrowed money from CHDM or its Subsidiaries to repay such loans; and
(viixxi) there shall All actions to be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary taken by CHDM in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to I-trax. The Purchaser I-trax may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (I Trax Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. Buyer, The obligation of the Purchaser Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 (S)3(a) and (S)4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there the Company shall not have procured all of the third party consents specified in (S)5(b) above, including approval of the transfer of ownership by the United States Department of Education, the State of Minnesota and all appropriate institutional and program accrediting bodies, except that such consents may be obtained after the Closing Date, as provided in (S)7(c) herein;
(iv) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
Agreement to be rescinded following consummation, (ivC) affect adversely the Seller right of the Buyer to own the Company Shares and to control the Company, or (D) affect adversely the right of any of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall have delivered to the Purchaser a certificate to the effect that the conditions specified above be in Section 9(a)(i) and (iieffect), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser Buyer a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S)7(a)(i)- (iv) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) the Seller Company and the Parties shall have delivered shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to the Purchaser all of the items under Section 2(fin (S)3(a)(ii), (S)3(b)(ii), and (S)4(c) herein; andabove;
(vii) there shall be no payables or receivables between the Seller and shall have obtained an approval, acceptable to the Buyer of the Buyer's purchase of the Company or between Affiliates Shares by (A) the United States Department of Education, including an acceptable assurance of the Seller Company's ability to continue to qualify for Title IV loans after Closing, (B) the State of Minnesota, and (C) all applicable institutional and programmatic accrediting bodies, including the Company.Accrediting Bureau of Health Education Schools ("AABHES"), except that such approvals may be obtained after the Closing Date, as provided in (S)7(c) herein;
(viii) the Purchaser Buyer shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable received from counsel to the PurchaserSeller an opinion in form and substance as set forth in EXHIBIT D attached hereto, addressed to the Buyer, and the Purchaser shall have satisfied all dated as of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(x) the Buyer shall have obtained on terms and conditions satisfactory to it all consents, waivers, exemptions, governmental approvals, regulatory approvals of the financing it needs in order to consummate the transactions contemplated hereby and other fund the working capital requirements of the Company; and
(xi) all actions that are necessary to be taken by the Seller in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force opinions, instruments. and other documents required to effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to the Buyer. The Purchaser Buyer may waive any condition specified in this Section 9(a(S)7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Argosy Education Group Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The Buyer's ObligationBuyer's obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (Date, except to the extent that such representations and warranties are qualified by terms such as though made then "material" and "Material Adverse Effect," in which case such representations and warranties shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" and "Material Adverse Effect," in which case Sellers shall have performed and complied with all of such covenants in all respects through the Closing;
(iii) there no action, suit or proceeding shall not 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 in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of Buyer to own Target Shares and to control Target or (D) affect adversely the right of Target to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Seller shall have delivered to Buyer a certificate (in form and substance reasonably acceptable to Buyer) (A) to the Purchaser effect that each of the conditions specified above in Sections 7(a)(i), (ii) and (iii) is satisfied in all respects and (B) containing with respect to the documents referred to in Sections 5(h), (i), (j), (k), (l), (m), (n) and (o) representations and warranties similar to those set out in the last two sentences of Section 3(s) above.
(v) Buyer shall have received (and Seller shall procure) the resignations, effective as of the Closing, of each director and officer of Target other than those whom Buyer shall have specified in writing at least five business days prior to the Closing;
(vi) each of Eric Berkobin and Paul Raley shall continue to be employed by Target xx xxxxx xxxxonablx xxxxxxxxtory to Buyer as of the Closing;
(vii) Seller shall have delivered to Buyer copies of the certificate of incorporation of Target certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of Target's incorporation;
(viii) Seller shall have delivered to Buyer copies of the certificate of good standing of Target issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person's organization and of each jurisdiction in which each such Person is qualified to do business; and
(ix) Seller shall have delivered to Buyer a certificate of the secretary or an assistant secretary of Target, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, as to (A) no amendments to the Certificate of Incorporation (or formation) of such Person since the date specified in clause (xii) above; (B) the bylaws (or other governing documents) of such Person; and (C) 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 hereby.
(x) Seller shall have obtained the consent of its Lenders and appropriate UCC releases. Buyer may, in its sole discretion, waive in writing any condition specified in this Section 7(a).
(b) Conditions to Sellers' ObligationThe obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as "material" and "Material Adverse Effect," in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" and "Material Adverse Effect," in which case Buyer shall have performed and complied with all of such covenants in all respects through the 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 or (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); and
(iv) Buyer shall have delivered to Seller a certificate to the effect that each of the conditions specified above in Section 9(a)(i7(b)(i), (ii) and (ii), as they pertain to the Seller, have been iii) is satisfied in all respects;
(v) the Seller shall have delivered to received the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all consent of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Companyits Lenders.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserBuyer and the Merger Subsidiary. --------------------------------------------------------------- The obligation of the Purchaser Buyer and the Merger Subsidiary to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the Requisite Shareholders Approval and the number of Dissenting Shares shall not exceed 5% of the number of outstanding Company Shares;
(ii) the representations and warranties set forth in Section 3 (S) 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iiiii) the Seller Company and the Company its Subsidiaries shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiiv) there the Company and its Subsidiaries shall not have procured all of the consents specified in (S) 5(b) and (c) above;
(v) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) materially adversely affect the right of the Buyer to own the capital stock of the Surviving Corporation and to control the Surviving Corporation and its Subsidiaries, or (D) materially adversely affect the right of any of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses other than any such action, suit, or proceeding arising from any claim relating to the matter set forth in paragraph 2 of Schedule 4(u) of the Disclosure Schedules (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivvi) the Seller Company shall have delivered to the Purchaser Buyer a certificate to the effect that each of the conditions specified above in Section 9(a)(i(S) and (ii), as they pertain to the Seller, have been 7(a)(i)-(v) is satisfied in all respects;
(vvii) the Seller Buyer Shares that will be issued in the Merger, and those required to be reserved for issuance in connection with the Merger, shall have delivered been approved for listing on the Nasdaq National Market, subject to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsofficial notice of issuance;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser Company, and its Subsidiaries shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaserreceived all authorizations, consents, and the Purchaser shall have satisfied all approvals of the conditions precedent governments and governmental agencies referred to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.in (S) 4(d) above;
(ix) all consentsthe relevant parties shall have entered into the Shareholders Agreement attached hereto as Exhibit A, waiversthe Escrow Agreement in form and substance as set forth in Exhibit D, exemptionsthe Registration Rights Agreement in form and substance as set forth in Exhibit F, governmental approvalsand the Employment Agreement in form and substance as set forth in Exhibits G attached hereto, regulatory approvals and other actions that are necessary in connection with the consummation each of the transactions contemplated by this Agreement, same shall be in full force and effect on the Closing Date.as against such parties;
(x) the Purchaser Buyer shall have received from Seller all information available counsel to Seller that the Company an opinion in form and substance as set forth in Exhibit H attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(xi) the Buyer shall not be required to issue more than 4,800,000 Buyer Shares (as such number of Buyer Shares is requested adjusted downward by the Purchaser promptly after number of Buyer Shares issuable upon the date hereof, and exercise or conversion of the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate Company Stock Rights (in which review Seller shall cooperate), shall not have learned of any fact or matter that, other than the options under the Company Option Plan) assumed by the Buyer in the good faith determination of Purchaser, causes Purchaser to be dissatisfied Merger in any material respect accordance with (S) 2(d)(vii) above) in connection with the transactions contemplated hereby;
(xii) (A)(x) the Buyer shall be reasonably satisfied based upon consultation with its counsel and receipt of a satisfactory number of Accredited Investor Statements from the shareholders of the Company indicating that the offering and issuance of the Buyer Shares as contemplated by this Agreement is in compliance with Rule 506 under the Securities Act, or (y) pursuant to (S) 5(c), the Buyer and the Company shall have received from the California Department of Corporations a Permit for the solicitation and issuance of the Buyer Shares to the shareholders of the Company in the Merger in accordance with this Agreement and the issuance of the Merger Consideration by the Buyer in accordance with this Agreement will be exempt from registration with the Securities and Exchange Commission pursuant to Section 3(a)(10) of the Securities Act, as the case may be, and (B) no other filings, approvals, registrations, or qualifications (other than post-Closing filings and registrations) are required under applicable federal or state securities laws for the consummation of the Merger in accordance with this Agreement;
(xiii) the Buyer Share Price is equal to or greater than $10.50; provided, however, this closing condition set forth in this -------- ------- (S) 7(a)(xiii) shall not apply in the event that the Company's Board of Directors agrees that for purposes of this Agreement and the transactions contemplated hereby, the Buyer Share Price is deemed to be $10.50, notwithstanding the actual average closing price per Buyer Share on the Nasdaq National Market;
(xiv) all actions to be taken by the Company 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;
(xv) the Company and its Subsidiaries shall have obtained and delivered to the Buyer a written consent for the assignment of each of the Leases if required (the "Lease Consents"), in form and substance -------------- reasonably satisfactory to the Buyer;
(xvi) the Company and its Subsidiaries shall have obtained and delivered to the Buyer an estoppel certificate with respect to each of the Leases, dated no more than 30 days prior to the Closing Date, from the other party to such Lease, in form and substance reasonably satisfactory to Buyer (the "Estoppel Certificates"); ---------------------
(xvii) the Company and its Subsidiaries shall deliver to 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 Internal Revenue Code so that the Buyer is exempt from withholding any portion of the Merger Consideration hereunder (the "FIRPTA ------ Affidavit"); ---------
(xviii) no damage or destruction or other change has occurred with respect to any of the Leased Real Property or any portion thereof that, individually or in the aggregate, would have a material adverse effect on the use or occupancy of the Leased Real Property or the operation of the Company's or its Subsidiary's business as currently conducted thereon. The Purchaser Buyer may waive any condition specified in this Section 9(a(S) 7(a) for itself and on behalf of the Merger Subsidiary if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Therma Wave Inc)
Conditions to Obligation to Close. (a) Conditions to of Obligation of the Purchaser. Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) each of the Seller and Pre-Closing Covenants set forth above shall have been satisfied;
(iii) the Company Selling Parties shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiiv) there no action, suit, or proceeding shall not 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 ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
would (ivA) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the prevent consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(xB) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review cause any of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Selling Parties Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viii) The Purchaser shall have received the resignations, effective as of the Closing Date, of each officer and Director of the Company, currently R. Thomas Kidd and Richard Altmann and the appointment of the designee(x) xx xxx Xurchaxxx. Xx xxxxxion, each officer and director shall waive any accrued compensation if any due said officers and directors as of the closing date. Said resignations shall be effective 10 days after the Purchaser files a Form 14f with the Securities and Exchange Commission.
(ix) Except as otherwise set forth in this Agreement. , there shall not have been any occurrence, event, incident, action, failure to act, or transaction which has had or is reasonably likely to cause a material adverse effect on the business, assets, properties, financial condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall deliver to selling parties a Certificate of Good Standing of the Purchaser issued by the Nevada Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xii) all actions to be taken by the Selling Parties 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 satisfactory in form and substance to the Purchaser; and The Purchaser may waive any condition specified in this Section 9(a13(a) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Domark International Inc.)
Conditions to Obligation to Close. (a) Conditions to Obligation of Parent and the PurchaserParent Subsidiary. The obligation of each of Parent and the Purchaser Parent Subsidiary to consummate the transactions to be performed by it in connection with the Closing Merger is subject to satisfaction or waiver by Parent or Parent Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 3(c) above;
(iii) the representations and warranties set forth in Section 3 and Section 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(iiiv) the Seller and the Company Target shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iiiv) there shall not be neither any injunction, judgment, order, decree, ruling Law or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding Governmental Order shall be pending before enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any Authority which seeks to prohibit or enjoin other action shall have been taken by any Governmental Entity (A) that prohibits the consummation of the transactions contemplated by this Agreement; (B) that prohibits Parent's or the Parent Subsidiary's ownership or operation of all or any portion of their or the Target's business or assets, or which compels Parent or the Parent Subsidiary to dispose of or hold separate all or any portion of Parent's or the Parent Subsidiary's or the Target's business or assets as a result of the transactions contemplated by this Agreement; (C) that makes the purchase of, or payment for, some or all of the Target Shares illegal; (D) that imposes limitations on the ability of Parent or the Parent Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by Parent on all matters properly presented to the Stockholders; or (E) that imposes any limitations on the ability of Parent or the Parent Subsidiary, or any of their respective Subsidiaries, effectively to control in any respect the business or operations of the Target or any of its Subsidiaries;
(ivvi) the Seller Target shall have delivered to Parent and the Purchaser Parent Subsidiary a certificate to the effect that each of the conditions specified above in Section 9(a)(i6(a)(i) and (ii), as they pertain to the Seller, have been - 6(a)(v) is satisfied in all respects;
(vvii) all applicable waiting periods (and any extensions thereof) under the Seller Hart-Scott-Rodino Act shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsexpired or otherwisx xxxx xxxxxxxxxx;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser Parent and the Parent Subsidiary shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable received from counsel to the PurchaserTarget an opinion in form and substance as set forth in Exhibit I attached hereto, addressed to the Parent and the Parent Subsidiary, and the Purchaser shall have satisfied all dated as of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.Closing Date;
(ix) the Parent and the Parent Subsidiary shall have received from counsel to the Target that is reasonably acceptable to Parent and its counsel an opinion concerning regulatory matters in form and substance reasonably acceptable to Parent and its counsel, addressed to the Parent and the Parent Subsidiary, and dated as of the Closing Date;
(x) the Parent and the Parent Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Parent shall have specified in writing at least five business days prior to the Closing;
(xi) Target and Kenneth G. Baritz shall have delivered to Parent anx xxx Xxxxxx Xxxxidiary an executed counterpart of the Escrow Agreement;
(xii) each of the Employment Agreements shall be in full force and effect;
(xiii) the Parent shall have received the Parent Fairness Opinion;
(xiv) the Parent shall have procured all consents, waivers, exemptions, governmental approvals, regulatory approvals of the third party consents specified in Section 55(c) above;
(xv) the MCG Agreement shall be in full force and other effect;
(xvi) the Indemnification Agreement shall be in full force and effect; and
(xvii) all actions that are necessary to be taken by the Target in connection with the consummation of the transactions contemplated by this AgreementAgreement and all certificates, shall be in full force opinions, instruments and other documents required to effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreementherein will be reasonably satisfactory in form and substance to the Parent and the Parent Subsidiary. The Purchaser Subject to the provisions of applicable law, Parent and the Parent Subsidiary may waive waive, in whole or in part, any condition specified in this Section 9(a6(a) if it executes they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Talk Com)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserEach Party's Obligations. The obligation respective obligations of the Purchaser each Party to consummate the transactions to be performed by it in connection with the Closing is contemplated herein are subject to the satisfaction of the following conditions:
(i) This Agreement shall have been approved by: (A) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge Seller's Board of Directors, (B) Seller Subs' Board of Directors, (C) the Seller shall be true Shareholder, (D) Seller Subs' shareholder, (E) the Buyer's Board of Directors, (F) the Acquisition Sub's Board of Directors and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of (G) the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Acquisition Sub's shareholder;
(ii) the Seller and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, No temporary restraining order, decree, ruling preliminary or charge in effect permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
(iv) herein or limiting or restricting Buyer's or Acquisition Sub's conduct or operation of the Seller business of Buyer and/or Acquisition Sub after the Closing shall have delivered been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there have been any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all sale of the items under Section 2(f) herein; and
(vii) there shall be no payables Acquired Assets which makes or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with would make the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.herein illegal; and
(xiii) the Purchaser The Parties shall have received obtained all necessary consents and approvals from all Government Entities and Third Parties, including, if necessary and without limitation, ICANN's consent to the transfer from Seller all information available to Seller that is requested by Buyer of Seller's ICANN accreditation under the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this ICANN Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserParent's Obligation. The obligation of the Purchaser Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the Requisite Company Stockholder Approval;
(ii) Company 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 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (Date, except to the extent that such representations and warranties are qualified by terms such as though made then "material" and "Material Adverse Effect," in which case such representations and warranties shall be true and correct in all respects at and as though of the Closing Date were substituted for the date of this Agreement)Date;
(iiiv) the Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" and "Material Adverse Effect," in which case Company shall have performed and complied with all of such covenants in all respects through the Closing;
(iiiv) there no action, suit, or proceeding shall not 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of Company, or (D) affect adversely the right of any of the former Subsidiaries of Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivvi) the Seller Company shall have delivered to the Purchaser Parent a certificate to the effect that each of the conditions specified above in Section 9(a)(i6(a)(i)-(v) and (ii), as they pertain to the Seller, have been is satisfied in all respects;
(vvii) the Seller Company shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items received subscriptions under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates SPA for gross proceeds of the Seller and the Company.at least $2,010,000;
(viii) the Purchaser Company shall have obtained financing delivered $300,000 to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the PurchaserXxxxx X. Xxxxxxx, and the Purchaser Parent shall have satisfied all issued 300,000 shares of its common stock, to Xxxxx X. Xxxxxxx effective as of the conditions precedent Closing, as and for his unconditional indemnity to acquisitions under WinsLoew FurnitureCompany, Inc.'s line of credit with Fleetits officers and directors as forth below in paragraph 8 (n).
(ix) all applicable waiting periods (and any extensions thereof) under the securities laws shall have expired or otherwise been terminated and the Parties shall have received all other authorizations, consents, waivers, exemptions, and approvals of governments and governmental approvals, regulatory approvals agencies referred to in Section 3 and other Section 4 above; and
(x) all actions that are necessary to be taken by Company in connection with the consummation of the transactions contemplated by this Agreementhereby and all certificates, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofopinions, instruments, and the Purchaser, upon review of such matters related other documents required to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with effect the transactions contemplated by this Agreementhereby will be reasonably satisfactory in form and substance to Parent. The Purchaser Parent may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (American Basketball Association, Inc.)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement);
(ii) the Seller Sellers and the Company shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement;
(iv) each of the Seller Sellers shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the each Seller, have been satisfied in all respects;
(v) the Seller Sellers shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Seller Hart-Scott-Rodino Act shall xxxx xxxxxxx xx xtherwise been terminated;
(vii) the Sellers shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(viiviii) there shall be no payables or receivables between the Seller Sellers and the Company or between Affiliates of the Seller Sellers and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserAHC. The obligation of the Purchaser AHC to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 2(a) and Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (except to the extent such representations and warranties are by their express provisions made as though made then of a specific date, in which they shall be true and correct in all material respects as though of the Closing Date were substituted for the date of this Agreementspecified date);
(ii) the Seller and the Company Sellers shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) there AG and its Subsidiaries shall not have procured all of the third party consents specified in Section 4(b) above;
(iv) no action, suit, or proceeding shall be pending or to AG and Seller's Knowledge threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect in a material adverse manner right of AHC to own AG Capital Stock and to control AG and its Subsidiaries, or (D) affect in a material adverse manner the right of any of AG 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);
(ivv) the Seller Sellers shall have delivered to the Purchaser AHC a certificate to the effect that each of the conditions specified above in Section 9(a)(iSections 6(a)(i)(ii) and (iiiv), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered extent said sections apply to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii)Sellers, as they pertain to the Company, have been are satisfied in all respects;
(vi) the Seller relevant parties shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller entered into an Employment Agreement with Xxx Xxxxxxxxxx. in form and substance as set forth on Exhibit C attached hereto and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, same shall be in full force and effect on effect;
(vii) AHC shall have received from counsel to each of the Sellers and AG an opinion in form and substance reasonably acceptable to AHC, addressed to AHC, and dated as of the Closing Date.;
(viii) AHC shall have received the resignations, effective as of the Closing, of each director and officer of AG and its Subsidiaries other than those whom AHC shall have specified in writing at least five business days prior to the Closing;
(ix) AG shall have delivered to AHC unaudited consolidated and consolidating balance sheet and statement of income and cash flow prepared in accordance with HGB for the calendar month ended within 30 days of the Closing Date ("AG Closing Financials");
(x) AG shall have, to AHC's satisfaction obtained, when appropriate, any and all releases for any Security Interests and delivered copies of same to AHC, or in the Purchaser alternative, written agreements from the holders of any Security Interests that upon receipt of any owed amounts to such persons, the holder of the Security Interest shall have received from Seller cooperate with AHC to release all information available Security Interests;
(xi) all actions to Seller that is requested be taken by the Purchaser promptly after the date hereof, and the Purchaser, upon review Sellers and/or AG in connection with consummation of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreementhereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to AHC. The Purchaser AHC may waive any condition specified in this Section 9(a6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Authentidate Holding Corp)
Conditions to Obligation to Close. (a) Conditions to of Obligation of the Purchaser. Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 Sections 4 and 5 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) each of the Seller and Pre-Closing Covenants set forth in Section 8, above shall have been satisfied;
(iii) the Company Selling Parties shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iiiiv) there the Company shall not have procured all of the third party consents required in order to effect the Closing;
(v) 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Sellers Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(ivvi) the Seller Selling Parties shall have delivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(ilO(a)(i)-(v) and (ii), as they pertain to the Seller, have been is satisfied in all respectsaspects, and (B) as of the Closing the Purchaser has no Liabilities and $32,000 in cash in its bank account;
(vvii) the Seller selling parties shall have received an opinion of counsel customary for transactions of this type that covers, among other things, that the Sellers Shares being delivered pursuant to this Agreement were validly issued, are fully paid and non-assessable and are being delivered to the Purchaser in a certificate to the effect that the conditions specified above private transaction not involving any public offering in Section 9(a)(i) compliance with applicable Federal and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Companystate securities laws.
(viii) the Purchaser shall have obtained financing to implement received the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions resignations, effective as are acceptable to of the PurchaserClosing Date, of each current director of the Company, except Scott Sieck, and the Purchaser shall have satisfied all received the resignations, xxxxxxxxx as of the conditions precedent Closing Date, of each officer of the Purchaser. The Board of Directors of the Purchaser shall direct that the Designees specified by the Purchaser shall be appointed as Directors of the Purchaser and any officers of the Purchaser who may be lawfully appointed to acquisitions under WinsLoew Furniture, Inc.'s line the newly designated Board of credit with Fleet.Directors of the Purchaser shall be nominated and elected;
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary Except as otherwise set forth in connection with the consummation of the transactions contemplated by this Agreement, there shall be in full force and not have been any occurrence, event, incident, action, failure to act, or transaction since February 29, 2008 which has had or is reasonably likely to cause a material adverse effect on the Closing Date.business, assets, properties, financial condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has fully completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall have received such pay-off letters and releases relating to Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xii) the Purchaser shall have conducted judgment lien and tax lien searches with respect to the Company, the results of which indicate no liens on the assets ofthe Company;
(xiii) the Company shall have delivered its Certificate of Incorporation and bylaws, both as amended to the Closing Date, certified by the Secretary of the Company, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the transactions contemplated hereby and the Company shall have delivered to the Purchaser the Company's original minute book and corporate seal and all other original corporate documents and agreements;
(xiv) the Company shall deliver to the Purchaser a Certificate of Good Standing in respect of the Company issued by the Nevada Secretary of State dated no earlier than ten (10) days prior to the Closing and a certificate of good standing from Seller the state of Florida for foreign corporation ..
(xv) all information available actions to Seller that is requested be taken by the Selling Parties 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 satisfactory in form and substance to the Purchaser; and
(xvi) At the Closing, there shall be no more than 8,500,000 shares of the Company issued and outstanding other than shares held by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by on a pro-forma basis under this Agreement. The Purchaser may waive any condition specified in this Section 9(alO(a) if it executes a writing so stating at or prior to the ClosingClosing in writing executed by the Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (DoMar Exotic Furnishings Inc.)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserCoach Parties and the Company. The obligation of the Purchaser Coach Parties, the Company and TK Investor No. 1 to consummate the transactions to be performed contemplated by it in connection with the Closing this Agreement is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified 3(a) shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the Closing;
(iii) there no action, suit, or proceeding shall not 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 ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation, (C) affect adversely the right of the Buyer to own the Shares (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Seller shall have delivered to the Purchaser Coach Parties and the Company a certificate to the effect that each of the conditions specified above in Section 9(a)(i6(a)(i)-(iii) and (ii), as they pertain to the Seller, have been are satisfied in all respects;
(v) the Seller shall have executed and delivered to the Purchaser Coach Parties and the Company a certificate to release substantially in the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respectsform of Exhibit A;
(vi) the Seller Buyer shall have delivered to the Purchaser all received a letter of resignation, effective as of the items under Section 2(f) hereinClosing, of each Sumitomo Director acknowledging that he or she has no claim outstanding for director's fees, wrongful or unfair dismissal, redundancy or any claim in respect of any other moneys or benefits due to him or her from the Company arising out of such resignation and that he or she is not entitled to any remuneration from the Company in respect of his or her appointment; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement executed and delivered the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Cooperation Agreement. The Purchaser Coach Parties, the Company and TK Investor No. 1 may waive any condition specified in this Section 9(a6(a) if it executes by executing a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Coach Inc)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserMLP Parties. The obligation of each of the Purchaser MLP Parties to consummate the transactions to be performed by it such MLP Party in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth of VPC contained in Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true SECTIONS 3(a) and correct and any such representations and warranties that are not so qualified shall 4 must be true and correct in all material respects at and (without, for purposes of determining whether or not this condition is satisfied as of the Closing Date Closing, giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value, except with respect to (A) the representations and warranties in SECTION 4(b)(ii) and (B) the representations and warranties in SECTION 4(C)(iii), for which in each such case qualifications as though made then and to Knowledge shall be given effect) as though the Closing Date were substituted for of the date of this AgreementAgreement and at Closing (except for those which refer to a specific date, which must be true and correct as of such date);
(ii) the Seller and the Company shall VPC must have performed and complied with all of their respective covenants hereunder in all material respects with its covenants hereunder through the Closing (without, for purposes of determining whether or not this condition is satisfied as of the Closing, giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value);
(iii) there shall must not be any injunction, judgment, order, decree, ruling ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim Agreement or proceeding shall be any suit or action pending before any by a Governmental Authority which seeks to prohibit or enjoin the consummation of any of the transactions contemplated by this Agreement;
(iv) the Seller MLP Parties must have obtained all material Governmental Authority and third party consents, including any material consents specified in SECTION 3(b)(II) and including the consents required by the corresponding Schedule and the 30-day waiting period under the HSR Act shall have expired or been terminated prior to the expiration thereof and all other approvals required under the HSR Act shall have been issued;
(v) VPC must have delivered to the Purchaser MLP Parties a certificate to the effect that each of the conditions specified above in Section 9(a)(iSECTIONS 7(a)(i) and - (ii), as they pertain to the Seller, have been satisfied in all respects;
(viv) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been is satisfied in all respects;
(vi) the Seller shall MLP and a group of underwriters must have executed and delivered an Underwriting Agreement (the "Underwriting Agreement") with respect to a public offering of common units representing limited partner interests in the Purchaser all MLP with an aggregate offering amount of up to $200 million (not including the underwriters' over-allotment option) and the closing of the items under Section 2(f) herein; andtransactions contemplated therein must have occurred;
(vii) there shall be no payables one or receivables between more of the Seller MLP Parties and a group of note purchasers must have executed and delivered a Note Purchase Agreement with respect to the Private Placement with an aggregate principal amount of up to $250 million (the "Note Purchase Agreement") and the Company or between Affiliates closing of the Seller and the Company.transactions contemplated thereby must have occurred;
(viii) one or more of the Purchaser MLP Parties shall have obtained financing entered into arrangements under the OLP's revolving credit facility to implement borrow such additional amount as is necessary for the MLP and OLP to fund the aggregate amount of the Cash Amount, the cash amount required under the Contribution Agreements entered into as the date hereof by the MLP Parties with Valero Refining Company-California and with Valero Refining-Texas, L.P. for the contribution of specified feedstock storage tanks as identified therein, the additional cash amount required for the Redemption as well as the aggregate transaction costs with respect to all transactions provided for in this Agreement and contemplated above (expected to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaserbe approximately $2 million), and the Purchaser shall have satisfied all closing of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.borrowing transaction must have occurred;
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals the MLP Parties must have duly and other actions that are necessary in connection with validly authorized the consummation terms of the transactions contemplated by this Underwriting Agreement, shall be the Note Purchase Agreement and the borrowing by the OLP as contemplated in full force clauses (vi), (vii) and effect on the Closing Date.(viii) above;
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by proceeds of the Purchaser promptly after the date hereof, equity and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with debt financing for the transactions contemplated hereby as outlined in clauses (vi), (vii) and (viii) above must have been received by this Agreementthe MLP Parties on terms substantially the same as authorized by the MLP Parties; and
(xi) the MLP's public offering of its common units and the Redemption, on an aggregate basis, must have caused the aggregate ownership interest of Valero Energy in the MLP to be 49.5% or less. The Purchaser MLP Parties may waive any condition specified in this Section 9(aSECTION 7(a) if it Xxxxxx XX, on behalf of all of the MLP Parties, executes a writing so stating at or prior to before the Closing.
Appears in 1 contract
Samples: Contribution Agreement (Valero L P)
Conditions to Obligation to Close. (a) Conditions to Obligation of the PurchaserInvestor. The obligation of the Purchaser Investor to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 3 4 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement)Date;
(ii) the Seller and the The Company shall have performed and complied with all of their respective its covenants hereunder in all material respects through the ClosingClosing Date;
(iii) there The Company and its Subsidiaries shall not have procured any third party consents specified in Section 5(b) above and shall deliver to the Investor the following documents, each of which shall be appropriately executed other than by the Investor: (A) a Voting Agreement in the form of Xxxxxxx "X" xxxxxx, (X) a Certificate of Contingent Interest as described in Section 6(c) in the form of Exhibit "C" hereto; (C) Employment Agreements in the form of Exhibit "D" hereto from each of the Company's executive officers, and (D) an opinion of the Company's legal counsel, Xxxxxxx Xxxxx & Xxxxxxx, in the form of Exhibit "E" hereto;
(iv) no action, suit, or proceeding shall have been instituted before any court or quasi-judicial or administrative agency of any national, federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge in effect preventing would (A) prevent consummation of any of the transactions contemplated by this Agreement, and no action, suit, claim or proceeding shall be pending before (B) cause any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this AgreementAgreement to be rescinded following consummation;
(ivv) the Seller The Company shall have delivered to Investor audited consolidated and audited consolidating balance sheets and statements of income, changes in stockholders' equity, and cash flows as of and for the Purchaser seven (7) months ending July 31, 1997 for the Company (the "Updated Financial Statements").
(vi) The Company shall have delivered to Investor a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i8(a)(i)-(iv) and (iiother than the deliveries under Section 8(a)(iii), as they pertain to the Seller, have been ) are satisfied in all respects;
, and (vB) the Seller shall have delivered Company is not aware of any material modifications to the Purchaser a certificate Updated Financial Statements necessary to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) hereinmake those statements not false or misleading; and
(vii) there all applicable waiting periods (and any extensions thereof) under applicable law shall be no payables have expired or receivables between the Seller otherwise been terminated and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser its Subsidiaries shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereofother authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5(b) relating to the Purchaser, upon review of such matters related to Seller, Company and its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this AgreementSubsidiaries. The Purchaser Investor may waive any condition specified in this Section 9(a8(a) if it executes a writing so stating at or prior to the Closing. At the Closing, assuming the satisfaction, or waiver by the Investor, of the conditions set forth in this Section 8(a), the Investor shall deliver to the Company the Purchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wireless Cable & Communications Inc)
