Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions: (a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (1606 Corp.), Membership Interest Purchase Agreement (1606 Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller and the Members contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Article III and Section 3.21, the representations and warranties Article IV of Sellers contained in this Agreement, the Transaction Documents Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Each of Seller and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 the Members shall have duly performed and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and Ancillary Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller and the same effect Members shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects.
(c) No Action shall have been commenced against Buyer or Seller which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) Seller shall have received all consents, authorizations, orders and approvals from third parties (including a written confirmation from Seller’s landlord of the leased premises that such landlord acknowledges Buyer’s ownership of the Purchased Interest and that the terms of the lease at and following closing will continue to be the same as those in place prior to the date hereof) and from the Governmental Authorities referred to in Section 3.05 and Section 6.07, in each case, in form and substance reasonably satisfactory to Buyer, and no such consent, authorization, order and approval shall have been revoked.
(e) Sellers shall have received the Preliminary Approvals, in each case, in form and substance reasonably satisfactory to Buyer, and no such Preliminary Approval shall have been modified or revoked.
(f) The CCC, City of Leicester and any other applicable Government Authorities shall have approved the ownership by Buyer of the Purchased Interest.
(g) Seller shall have received all building permits and entered into all construction contracts (at least two proposed construction contracts shall have been presented to Buyer as options for its consideration). For purposes , on terms reasonably acceptable to Buyer (which terms are consistent with the approved budget described below), to construct the planned recreational cannabis grow facility at the Seller’s leased premises in the City of Leicester, Massachusetts;
(h) Seller shall have prepared a budget, which budget has been approved by Buyer in its reasonable discretion, for the construction and build out of the planned recreational cannabis grow facility at the Seller’s leased premises in the City of Leicester, which budget shall include amounts to be paid at set dates based on the achievement of agreed upon milestones, and which total budget shall not exceed $25,000,000 without the consent of Buyer, which may be granted or withheld in its sole discretion;
(i) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , including, without limitation, any eventchange in any federal, occurrence, fact, condition state or change that islocal laws or regulations, or could reasonably be expected to becomethe enforcement thereof, that would have an adverse effect on the cannabis industry in general or the business of Seller, nor shall any event or events have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(aj) The Ancillary Documents shall have been executed and delivered by the businessparties thereto and true and complete copies thereof shall have been delivered to Buyer.
(k) Buyer shall have received a certificate, results dated the Closing Date and signed by a duly authorized officer of operationsSeller, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(financial l) Seller shall have delivered to Buyer membership interests in the Company in an amount equal to the Purchased Interest.
(m) Seller shall have no Indebtedness except with respect to the CLS Holdings Loan.
(n) Seller shall have delivered to Buyer the Required Audited Financial Statements.
(o) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the Manager and Members of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(p) Seller shall have delivered to Buyer a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition good standing certificate (or change, directly its equivalent) for Seller from the secretary of state or indirectly, arising out similar Governmental Authority of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries jurisdiction under the Laws in which Brio operates; Seller is organized.
(iiiq) any changes Seller shall have established a separate construction bank account in financial the name of the Company with Jxxxxxx Xxxxxx (or securities markets his designee) as the sole signatory into which the Purchase Price shall be deposited.
(r) Buyer shall have received an environmental report or study of the leased premises, the results of which are satisfactory to Buyer (in general; its sole discretion).
(ivs) acts of war (whether Seller shall have delivered to Buyer such other documents or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (CLS Holdings USA, Inc.), Membership Interest Purchase Agreement
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties Seller Fundamental Representations (with the exception of Sellers contained in clause (c) of Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.214.03), the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties Seller Fundamental Representations (with the exception of Sellers contained in clause (c) of Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 4.03) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or any Seller which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All Seller Material Consents shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Sellers shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Material Permits.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) of each Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or assets managers, as applicable, and shareholders or members, as applicable, of Briosuch Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting each Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of such Seller authorized to sign this Agreement, except pursuant the Transaction Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vil) any changes in applicable Laws Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Sprague Resources LP)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate complete the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.012.01 (Organization and Authority of Seller), Section 3.022.02 (Organization, Section 3.03, Section 3.06 Authority and Qualification of the Company) and Section 3.212.03 (Capitalization), the representations and warranties of Sellers Seller contained in this Agreement, the other Seller Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of without giving effect to any representation qualifications or warranty qualified by limitations as to materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except, for such failures to be true and correct that have not resulted in and would not reasonably be expected to result in Losses to Buyer in excess of $20,000,000 individually or an annual average Loss of $2,500,000 for a period of no less than five (5) years . The representations and warranties of Sellers Seller contained in Section 3.012.01, Section 3.02, Section 3.03, Section 3.06 2.02 and Section 3.21 2.03 shall be true and correct in all respects (other than de minimis respects) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Seller Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, Seller, the Company or any Subsidiary that would or that seeks to prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which prohibits the consummation of any material transaction contemplated hereby.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Company Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Company Material Adverse Effect.
(ae) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto (other than Buyer) and true and complete copies thereof shall have been delivered to Buyer.
(f) Buyer shall have received a certificate, dated the Closing Date and signed by the chief executive officer of Seller, that each of the conditions set forth in Section 6.01(a) and Section 6.01(b) have been satisfied.
(g) Buyer shall have received an opinion of legal counsel to Seller substantially in the form attached as Exhibit B.
(h) Buyer shall have received a certificate, dated the Closing Date and signed by the Secretary or an Assistant Secretary (or equivalent officer) of Seller, certifying that attached thereto are true and complete copies of (A) the businessarticles of incorporation and bylaws (or other equivalent organizational documents) of Seller and (B) all resolutions adopted by the board of directors of Seller authorizing the execution, results delivery and performance of operations, condition (financial or otherwise) or assets this Agreement and the other Seller Transaction Documents and the completion of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; providedand thereby, however, and that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(i) general economic Buyer shall have received a certificate, dated the Closing Date and signed by the Secretary or political conditions; an Assistant Secretary (iior equivalent officer) conditions generally affecting of Seller, certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the Seller Transaction Documents and the other documents to be delivered hereunder and thereunder.
(j) Buyer shall have received resignations of the directors and officers of the Company and each Subsidiary designated by Buyer in accordance with Section 4.05.
(k) Seller shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company and each Subsidiary from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company or Subsidiary is organized.
(l) The Guaranty dated January 31, 2008 by the Company in favor of HSBC Bank USA, National Association, shall have been terminated.
(m) Seller shall have delivered to Buyer payoff letters, in a form reasonably acceptable to Buyer, from each Company lender that has a security interest in any assets of the Company or any of its Subsidiaries.
(n) The Company shall have delivered to Buyer an affidavit, signed under penalty of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in form and substance required under Treasury Regulation Section1.897-2(h), and shall comply with the notice requirements pursuant to Treasury Regulation Section 3.05; 1.897-2(h)(2).
(vio) any changes Seller shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the Shares, free and clear of Encumbrances, duly endorsed in applicable Laws blank or accounting rules, including GAAP; accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed.
(viip) the public announcement, pendency Seller shall have delivered to Buyer such other documents or completion of instruments as Buyer reasonably requests and are reasonably necessary to complete the transactions contemplated by this Agreement; provided further.
(q) The filings pursuant to the HSR Act, howeverif any, that shall have been made and the applicable waiting period and any eventextensions thereof shall have expired or been terminated.
(r) No Governmental Authority shall have enacted, occurrenceissued, factpromulgated, condition enforced or change entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise prohibiting completion of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.
(s) Seller shall have received all consents referred to in clauses Section 2.05 and Buyer shall have received all consents referred to in Section 3.03, in each case, in form and substance reasonably satisfactory to Buyer and Seller, respectively, and no such consent, authorization, order and approval shall have been revoked.
(t) Unless waived by Buyer in its sole discretion:
(i) through (iv) immediately above The Company shall be taken have redeemed the ESOP Shares from the ESOP Trustee or the Company and the ESOP Trustee shall have entered into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected legally binding agreement to occur sell the ESOP Shares to the extent that Company concurrently with the Closing; and
(ii) The Company shall have taken all action necessary to terminate the ESOP on such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared terms and conditions as are satisfactory to other participants in the industries in which Brio conducts its businessesBuyer.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article V shall be true and correct in all material respects (in the case of any representation or warranty except as qualified by materiality or Material Adverse Effect) or , in which case they shall be true and correct in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectrespects) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date date).
(b) Each Seller shall have duly performed and complied in all respects). For purposes of material respects with all agreements, covenants and conditions required by this Agreement “to be performed or complied with prior to or on the Closing Date.
(c) Each Seller shall have complied with each condition set forth in Article IV hereof and shall have delivered the items set forth therein, in each case as applicable to such Seller.
(d) There shall not have occurred any Material Adverse Effect” means .
(e) There shall not be any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or Governmental Rule in effect prohibiting the aggregate, materially adverse to (a) the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this AgreementAgreement or any claim, except pursuant to Section 3.05; (vi) action, suit, proceeding, investigation, hearing, arbitration, judgment, decree, injunction pending before any changes in applicable Laws or accounting rulesGovernmental Entity that, including GAAP; or (vii) if adversely determined, would prohibit the public announcement, pendency or completion consummation of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Theravance Biopharma, Inc.), Asset Purchase Agreement (Cumberland Pharmaceuticals Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05, Section 3.06, Section 3.09, Section 3.10, Section 3.18, Section 3.19, Section 3.23 and Section 3.213.25, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05, Section 3.06, Section 3.09, Section 3.10, Section 3.18, Section 3.19, Section 3.23 and Section 3.21 3.25 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, Seller or the Acquired Entities, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have duly executed and delivered the businessAncillary Documents to Buyer.
(g) At least three (3) Business Days before Closing, results Seller shall have delivered to Buyer a statement setting forth the estimated New Rise Liabilites.
(h) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of operationsSeller that each of the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied (the “Seller’s Officers Certificate”).
(i) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the managers and members of Seller authorizing the execution, condition (financial or otherwise) or assets delivery and performance of Brio, or (b) this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on a timely basis; providedand thereby, however, and that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and certifying the names and signatures of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts officers of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by Seller authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder (the “Seller’s Secretary’s Certificate”).
(j) Seller shall have delivered to Buyer a good standing certificate (or its equivalent) for each Acquired Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Acquired Company is organized and each other jurisdiction in which an Acquired Company is qualified to do business (the “Status Certificates”).
(k) Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code (vithe “FIRPTA Certificate”).
(l) Seller shall have delivered to Buyer payoff statements with respect to the Closing Date Liability Payments, indicating the amount to be paid and the release of any changes applicable Encumbrance (the “Payoff Statements”).
(m) Viking shall have obtained the Viking Bond, on terms and conditions satisfactory to Viking, in applicable Laws its sole discretion.
(n) Viking and the Seller shall have agreed in writing to the Purchase Price Adjustment Mechanism.
(o) Seller shall have obtained a Phase 1 Environmental Report that meets ASTM E 1527-13, and any update thereof as determined by the Buyer, in its sole discretion (the “Phase 1 Environmental Report”).
(p) The Inspection Period has ended and Viking shall have completed its due diligence investigation of the Acquired Entities and Plant, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation.
(q) If requested by Buyer, each Related Party Contract has been terminated or accounting rulesamended to the satisfaction of Viking, including GAAP; at its election and in its sole discretion (the “Related Party Contract Terminations”).
(r) Seller shall have delivered to Buyer such other documents or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Camber Energy, Inc.), Membership Interest Purchase Agreement (Viking Energy Group, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.04, Section 3.06 and Section 3.214.24, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.04, Section 3.06 and Section 3.21 4.24 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets and those listed on Section 4.10(a)(i) of the Disclosure Schedules shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial or otherwisethe “Seller Closing Certificate”).
(j) or assets Buyer shall have received a certificate of Briothe Clerk of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the assembly of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a timely basis; providedcertificate of the Clerk of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, howeverthe Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(m) Buyer shall have completed the Additional Buyer Due Diligence and the results of such due diligence shall be satisfactory to Buyer in its sole discretion.
(n) Seller shall have delivered an opinion of counsel, from counsel satisfactory to Buyer, in form and substance satisfactory to Buyer, that “Material Adverse Effect” execution and delivery of the transactions to be consummated hereby will not cause outstanding Xxxxxxx Xxxx Tax Exempt Debt to lose its tax exempt status.
(o) Seller shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: have delivered (i) general economic or political conditions; the financial statements referred to in Section 6.17 and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action all Updated Financial Statements required or permitted by this Agreement, except including ML&P’s 2018 audited financial statements. Buyer shall have such other financial statements and information it needs that meets the requirements of Item 9.01 of Form 8-K promulgated by the SEC that permits Buyer to file a Form 8-K pursuant to Item 2.01 of Form 8-K following the Closing in a timely manner.
(p) Buyer shall have received the opinion of bond counsel referenced in Section 3.05; 3.02(c), in the form attached hereto as Exhibit P, and the independent certified public accountant’s report referenced in Section 3.02(c).
(viq) any changes The IBEW Collective Bargaining Agreement shall be in full force and effect and shall not have expired.
(r) Provided that the Transition Agreement is in full force and effect, Buyer shall have received a certificate of a duly authorized official of Seller certifying that Seller has satisfied each and all of the requirements of AO No. 2018-1(S) that are applicable Laws to Seller.
(s) Seller shall have entered into the ARRC Modifications.
(t) Seller shall have entered into the Co-Location Agreement on terms reasonably acceptable to Buyer, and AWWU shall have consented to the assignment of the Co-Location Agreement by Seller to Buyer effective upon the Closing.
(u) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty contained in Section 4.01, Section 4.02, Section 4.04, Section 4.11 and Section 4.22 and any representation or warranty qualified by materiality or Material Adverse Effectmateriality) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectmateriality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of Sellers contained the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) All approvals, consents and waivers that are listed in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date hereof of this Agreement, there shall not have occurred any Material Adverse Effect.
(e) Seller shall have delivered to Buyer duly executed counterparts to the Ancillary Documents and on such other documents and deliveries set forth in Section 3.02(a).
(f) Buyer shall have received all Permits that are necessary for the conduct or operation of Seller’s business or for the ownership and use of the Purchased Assets unless otherwise expressly provided herein (including as of set forth in Section 2.10 hereof).
(g) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have delivered to Buyer the payoff letters, releases and other documents set forth in Section 3.02(a)(xi).
(h) Buyer shall have received a certificate, dated the Closing Date with and signed by a duly authorized officer of Seller, that each of the same effect as though made at conditions set forth in Section 7.02(a) and as Section 7.02(b) have been satisfied (the “Seller Closing Certificate”).
(i) Buyer shall have received a certificate of such date (except those representations an officer of Seller certifying that attached thereto are true and warranties that address matters only as complete copies of a specified dateall resolutions adopted by the board of directors of Seller authorizing the execution, the accuracy of which shall be determined as of that specified date in all respects). For purposes delivery and performance of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in and the aggregate, materially adverse to (a) Ancillary Documents and the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(j) Buyer shall have received a timely basis; providedcertificate of an officer of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors and of the shareholders of Seller authorizing the sale of the Purchased Assets pursuant to the terms and conditions of this Agreement, howeverand that all such resolutions are in full force and effect.
(k) Buyer shall have received a certificate of an officer of Seller certifying that attached thereto are true and complete copies of the resolution adopted by the shareholders of Seller authorizing the sale of the Purchased Assets.
(l) Buyer shall have received a certificate of an officer of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, that “Material Adverse Effect” the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(m) No Action shall not include any eventhave been commenced or threatened against Buyer or Seller, occurrencewherein an unfavorable judgment, factorder, condition decree, stipulation or change, directly or indirectly, arising out of or attributable to: injunction would (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion prevent consummation of the transactions contemplated by this Agreement; provided further, however(ii) cause the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of Buyer to own, that operate or control any eventof the Purchased Assets, occurrenceor to conduct Seller’s business as currently conducted, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to any material respect following the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Smart Sand, Inc.), Asset Purchase Agreement (Smart Sand, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than Each of the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and Seller (without giving effect to any certificate “material,” “Material Adverse Effect” or other writing delivered pursuant hereto similar materiality qualifications therein) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on as of the Closing Date, as if made anew at and as of the Closing Date Date, except with the same effect as though made at and as of such date (except those respect to representations and warranties that address matters only which speak as of a specified to an earlier date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all material respects on at and as of such date, and (ii) each of the other representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date hereof and on as of the Closing Date, as if made anew at and as of the Closing Date Date, except with the same effect respect to representations and warranties which speak as though made to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or .
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the ability Closing Date.
(c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, howeverSeller, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion each of the transactions contemplated conditions set forth in Section 6.02(a) Section 6.02(b) and Section 6.02(e) have been satisfied.
(d) Buyer shall have received the Domain Names and Company Intellectual Property held by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur Seller but which relates to the extent that such Company and the Business.
(e) No event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants occurred that that, individually or in the industries in which Brio conducts its businessesaggregate, has had or would reasonably be expected to have an adverse impact on the Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01(a), Section 3.024.02, Section 3.03, Section 3.06 4.08 and Section 3.214.14, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect. The representations and warranties of Sellers Seller contained in Section 3.014.01(a), Section 3.024.02, Section 3.03, Section 3.06 and Section 3.21 4.14 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes The representations and warranties of Seller contained in Section 4.08 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all material respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect.
(ae) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(i) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operations, condition (financial or otherwise) or assets the release of Briosuch Encumbrances, or (bii) Seller shall have delivered a payoff letter with respect to any indebtedness which is secured by an Encumbrance.
(g) Buyer shall have received a certificate, dated the ability Closing Date and signed by a duly authorized officer of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, howeverSeller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Material Adverse Effect” Seller Closing Certificate”).
(h) The Requisite Shareholder Vote shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: have occurred.
(i) general economic Seller shall have delivered to Buyer such other documents or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Seneca Foods Corp), Asset Purchase Agreement (Paradise Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of the Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of each of the Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of ;
(b) The Sellers shall each have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement “and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date;
(c) No Action shall have been commenced against Buyer or a Seller, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby;
(d) All approvals, consents and waivers that are listed on Schedule 4.03 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing;
(e) There shall not have occurred any Material Adverse Effect” means , nor any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect;
(af) The Sellers shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a);
(g) Buyer shall have received all Permits that are reasonable and necessary for it to conduct the Business as conducted by each of the Sellers as of the Closing Date;
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and the appropriate Seller shall have delivered to Buyer written evidence, in form reasonably satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances;
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial each, a “Seller Closing Certificate”);
(j) Buyer shall have received a certificate of the Secretary (or otherwiseequivalent officer) of each Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or assets members, as the case may be, of Briosuch Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(k) Buyer shall have received a timely basis; providedcertificate of the Secretary (or equivalent officer) of each Seller certifying the names and signatures of the officers or members of such Seller, howeveras the case may be, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder;
(vil) any changes in applicable Laws Each Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement;
(m) Buyer shall have received certificates pursuant to Treasury Regulations Section 1.1445-2(b) (each, a “FIRPTA Certificate”) that the Sellers are not foreign persons within the meaning of Section 1445 of the Code duly executed by each of the Sellers;
(n) UGC shall have successfully completed the Conversion, as contemplated by Section 6.18 herein, in a manner satisfactory to Buyer;
(o) each applicable Seller shall have submitted statements of use for all pending “Intent to Use” trademarks filed with the U.S. Patent and Trademark Office;
(p) the Membership Debt is less than $350,000, and any outstanding Membership Debt cannot be secured by the Purchased Assets; provided furtherand
(q) Buyer shall have received from an organization that is tax-exempt under section 501(c)(3) of Code, howeversuch organization to be acceptable to Buyer, that any eventduly executed counterparts of a Master Services Agreement, occurrence, fact, condition or change referred in a manner satisfactory to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesBuyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Uncommon Giving Corp), Asset Purchase Agreement (Uncommon Giving Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) The Company shall have effected the transactions described in Section 2.03(b).
(b) Other than the representations and warranties of Sellers the Company contained in Section 3.01, 3.01 and Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers the Company contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except date(except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Company contained in Section 3.01, 3.01 and Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) The Company, shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by them prior to or on the Closing Date.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means Effect on the Company, nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect on the Company.
(ae) Buyer shall have received adequate financing (the business“Buyer Financing”), results as reasonably determined by Buyer, whether in the form of operationsa private or public offering of debt or equity securities, condition to fund future working capital obligations of Buyer following the Closing.
(financial or otherwisef) or assets of BrioThe other Transaction Documents shall have been executed and delivered by Company and true and complete copies thereof shall have been delivered to Buyer.
(g) The Share Purchase Agreement, or (b) the ability of Sellers to consummate Voting Agreement and the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” thereunder shall not include any event, occurrence, fact, condition have been consummated.
(h) The Company shall have delivered to Buyer such other documents or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Assignment Agreement (Xenetic Biosciences, Inc.), Assignment Agreement (Xenetic Biosciences, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement at the Closing shall be subject to the fulfillment or Buyer’s waiver, at or prior to the ClosingClosing Date, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article III shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date Date, with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct in all material respects as of that specified date date), except where the failure of such representations and warranties to be true and correct would not, individually or in all respects). The the aggregate, have or reasonably be expected to have a Material Adverse Effect; provided, that the representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.02 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date Date, with the same effect as though made at and as of such date date, without exception for immaterial errors or otherwise.
(except those representations b) On or prior to Closing, Buyer shall have satisfactorily completed its due diligence review of the Company and warranties that address matters only its business.
(c) On or prior to Closing, the Company shall have filed the Certificate of Designation for the Shares with the Illinois Secretary of State and delivered to Buyer evidence of the Illinois Secretary of State’s acceptance thereto.
(d) The Company shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.
(e) Buyer shall have received a certificate, dated as of such Closing Date and signed by a specified dateduly authorized officer of the Company, that each of the accuracy applicable conditions set forth in this Section 6.02 have been satisfied.
(f) Bxxxx shall have received a certificate of which shall be determined as the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying (i) that specified date in attached thereto are true and complete copies of all respects). For purposes resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any eventand the consummation of the Transaction, occurrence, fact, condition or change and that is, or could reasonably be expected to become, individually or all such resolutions are in full force and effect and are all the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate resolutions adopted in connection with the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” hereby,
(g) The Company shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorismhave delivered, or caused to be delivered, to Buyer confirmation from the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes Company that the Shares being purchased at the Closing have been registered in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion Company’s books and records as outstanding in the name of the transactions contemplated by this Agreement; provided furtherBuyer and free and clear of Encumbrances.
(h) At the Closing, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above Buyer shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to have received from the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in Company the industries in which Brio conducts its businessesDisclosure Schedule.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Yunhong Green Cti Ltd.), Stock Purchase Agreement (Yunhong Green Cti Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller contained in Article III (other than in Section 3.013.1, Section 3.023.2, Section 3.033.4, Section 3.06 3.9 and Section 3.213.15), the representations and warranties of Sellers contained disregarding in this Agreementeach case any reference to “materiality”, the Transaction Documents and any certificate “Material Adverse Effect” or other writing delivered pursuant hereto similar qualifications therein, shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct as of that specified date date), except where the failure of such representations and warranties to be true and correct would not, in all respects)the aggregate, have a Material Adverse Effect. The representations and warranties of Sellers Seller contained in Section 3.013.1, Section 3.023.2, Section 3.033.4, Section 3.06 3.9 and Section 3.21 3.15 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct as of that specified date date).
(b) Seller shall have duly performed and complied in all respects). For purposes material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date.
(c) Since the date of this Agreement “Agreement, there shall not have been any Material Adverse Effect” means Effect on the Business, the Purchased Assets or the Assumed Liabilities or any event, occurrence, fact, condition or change that ischange, or could reasonably be expected to becomeeffect that would, individually or in the aggregate, materially adverse reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether have a Material Adverse Effect has occurred on the Business, the Purchased Assets or could reasonably be expected the Assumed Liabilities.
(d) Seller shall have delivered to occur Buyer all material third party, governmental, and securities exchange, and contractual counterparties consents, permits, licenses and other approvals identified on Schedule 8.1(d).
(e) Seller shall have delivered to Buyer all requisite corporate approval for the extent Contemplated Transactions and all Related Documents.
(f) Seller shall have delivered to Buyer the items set forth in Section 2.4(b).
(g) Buyer shall have received from the SEC written confirmation that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared the SEC will not require Buyer to other participants include the Supplemental Carve-Out Financial Statements in the industries in which Brio conducts its businessesSEC filings.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cerecor Inc.), Asset Purchase Agreement (Aytu Bioscience, Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.1, Section 3.024.2, Section 3.03, Section 3.06 and Section 3.214.7, the representations and warranties of Sellers Seller contained in Article IV of this Agreement, the Transaction Documents and any certificate or other writing Agreement delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.1, Section 3.024.2, Section 3.03, Section 3.06 and Section 3.21 4.7 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or .
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the ability of Sellers Ancillary Documents to consummate be performed or complied with by it prior to or on the transactions contemplated hereby on a timely basisClosing Date; provided, howeverthat, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Seller shall have delivered to Buyer duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.2(a).
(d) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion each of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to conditions set forth in clauses Section 7.2(a) and Section 7.2(b) have been satisfied (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses“Seller Closing Certificate”).
Appears in 2 contracts
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) The Company shall have delivered the documents described in Section 2.3(b).
(b) Other than the representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.1 and Section 3.213.2, the representations and warranties of Sellers the Company contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.1 and Section 3.21 3.2 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) The Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by them prior to or on the Closing Date.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means Effect on the Company, nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect on the Company.
(ae) The Registered Offering Closing shall have occurred.
(f) The other Transaction Documents shall have been executed and delivered by the businessCompany and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received from Mxxxxx a fully executed copy of Amendment No. 6 to the Bukwang License, results of operations, condition in the form attached to the Biodexa License Agreement.
(financial h) The Company shall have delivered to Buyer such other documents or otherwise) or assets of Brio, or (b) the ability of Sellers instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Assignment and Exchange Agreement (Adhera Therapeutics, Inc.), Assignment and Exchange Agreement (Biodexa Pharmaceuticals PLC)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(e) The other Transaction Documents shall not include any eventhave been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(f) Buyer shall have received a certificate, occurrencedated the Closing Date and signed by Seller, fact, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(g) Seller shall have delivered to Buyer a good standing certificate (or change, directly its equivalent) for the Company from the secretary of state or indirectly, arising out similar Governmental Authority of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries jurisdiction under the Laws in which Brio operates; the Company is organized.
(iiih) any changes in financial Seller shall have delivered to Buyer such other documents or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (National Waste Management Holdings, Inc.), Membership Interest Purchase Agreement (National Waste Management Holdings, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the Seller Fundamental Representations and the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.05, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in the Seller Fundamental Representations and the representations and warranties in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.05 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, Seller or an Acquired Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(f) Buyer shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting have obtained sufficient cash proceeds from financing transactions to enable Buyer to pay the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of Total Purchase Price and consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred .
(g) Buyer shall have received the Closing Financial Statements from Buyer’s Accountants in accordance with Section 5.09.
(h) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to in clauses Buyer.
(i) through Buyer shall have received resignations of the directors and officers of the Acquired Companies pursuant to Section 5.05.
(ivj) immediately above At least three Business Days before Closing, Seller shall be taken into account have delivered to Buyer the Closing Indebtedness Certificate and the Closing Transaction Expenses Certificate.
(k) Seller shall have delivered to Buyer the Estimated Closing Working Capital Statement contemplated in determining whether Section 2.04(a)(ii).
(l) Seller shall have delivered to Buyer a Material Adverse Effect has occurred good standing certificate (or could reasonably be expected to occur to its equivalent) for each Acquired Company from the extent that such event, occurrence, fact, condition secretary of state or change has a disproportionate effect on Brio compared to other participants in similar Governmental Authority of the industries jurisdiction under the Laws in which Brio conducts its businessesthe Acquired Company is organized.
(m) Seller shall have delivered to Buyer pay-off letters relating to all Indebtedness of the Acquired Companies, in form and substance reasonably acceptable to Buyer.
(n) Seller and the Company shall have signed the Sublease.
(o) Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code.
(p) Seller shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed.
(q) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(r) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(s) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(t) Seller shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Air Industries Group), Stock Purchase Agreement (Cpi Aerostructures Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement at the Closing shall be subject to the fulfillment or Buyer’s waiver, at or prior to the ClosingClosing Date, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article III shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date Date, with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct in all material respects as of that specified date date), except where the failure of such representations and warranties to be true and correct would not, individually or in all respects). The the aggregate, have or reasonably be expected to have a Material Adverse Effect; provided, that the representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.02 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date Date, with the same effect as though made at and as of such date date, without exception for immaterial errors or otherwise.
(except those representations b) On or prior to Closing, Buyer shall have satisfactorily completed its due diligence review of the Company and warranties that address matters only its business.
(c) On or prior to Closing, the Company shall have filed the Certificate of Designation for the Shares with the Illinois Secretary of State and delivered to Buyer evidence of the Illinois Secretary of State’s acceptance thereto.
(d) The Company shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.
(e) Buyer shall have received a certificate, dated as of such Closing Date and signed by a specified dateduly authorized officer of the Company, that each of the accuracy applicable conditions set forth in this Section 6.02 have been satisfied.
(f) Buyer shall have received a certificate of which shall be determined as the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying (i) that specified date in attached thereto are true and complete copies of all respects). For purposes resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any eventand the consummation of the Transaction, occurrence, fact, condition or change and that is, or could reasonably be expected to become, individually or all such resolutions are in full force and effect and are all the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate resolutions adopted in connection with the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” hereby,
(g) The Company shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorismhave delivered, or caused to be delivered, to Buyer confirmation from the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes Company that the Shares being purchased at the Closing have been registered in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion Company’s books and records as outstanding in the name of the transactions contemplated by this Agreement; provided furtherBuyer and free and clear of Encumbrances.
(h) At the Closing, howeverBuyer shall have received from the Company the Disclosure Schedule, that any eventand within three business days from the Closing Date, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur from counsel to the extent that Company a legal opinion dated effective as of such eventClosing Date, occurrence, fact, condition or change has a disproportionate effect on Brio compared in form and substance acceptable to other participants in the industries in which Brio conducts its businessesBuyer.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Yunhong CTI Ltd.), Stock Purchase Agreement (Yunhong CTI Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiverwaiver in Buyer’s discretion, at or prior to the Closing, of each of the following conditions:
(a) Other Between the date hereof and the Closing, there shall be no Material Adverse Effect in the operations or condition of Hawker’s assets or the financial condition or liabilities (as reflected in Hawker’s Balance Sheet or otherwise) of Hawker other than such expenditures, business arrangements and changes in operations as mutually agreed by the representations parties prior to Closing and warranties of Sellers contained as provided in Section 3.01this Agreement. Between the date hereof and the Closing, Section 3.02there shall not have occurred any Material Adverse Effect with respect to Hawker, Section 3.03nor shall any event or events have occurred that, Section 3.06 and Section 3.21individually or in the aggregate, the could reasonably be expected to result in a Material Adverse Effect with respect to Hawker.
(b) The representations and warranties of Sellers contained in this Agreement, Agreement and the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the date of Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(c) Sellers shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by Sellers prior to or on the date hereof of Closing; provided, that, with respect to agreements, covenants and on conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(d) All executed approvals, consents and waivers that are listed on Schedule 7.5 shall have been received, and shall have been delivered to Buyer at or prior to the Closing.
(e) Sellers shall have duly executed and delivered to Buyer assignments of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected the Membership Interests in customary form.
(f) The other Transaction Documents shall have been executed and delivered and true and complete copies of the executed Transaction Documents shall have been delivered to become, individually or in the aggregate, materially adverse to Buyer.
(ag) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability Buyer shall have received a customary certificate of Sellers certifying the documents and signatures for the Transaction.
(h) Sellers shall have delivered to consummate Buyer a good standing certificate (or its equivalent) for Hawker from the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition secretary of state or change, directly or indirectly, arising out similar Governmental Authority of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries jurisdiction under the Laws in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesHawker is organized.
Appears in 2 contracts
Samples: Option Agreement (Sara Creek Gold Corp.), Option Agreement (Sara Creek Gold Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 4.05 and Section 3.214.28, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in without giving effect to any limitation indicated by the case of any representation or warranty qualified by materiality or words “Material Adverse Effect) or ,” “in all material respects (respects,” “in the case of any representation material respect,” “material,” or warranty not qualified by materiality or Material Adverse Effect“materially”) on when made and as of immediately prior to the date hereof and on and Closing, as of the Closing Date with the same effect as though if made at and as of such date time (except those representations and warranties that address matters only as of a specified particular date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on as of that date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The representations and warranties of Seller contained Section 4.01, Section 4.02, Section 4.03, Section 4.05 and Section 4.28 shall be true and correct in all respects when made and as of immediately prior to the date hereof and on and Closing, as of the Closing Date with the same effect as though if made at and as of such date time (except those representations and warranties that address matters only as of a specified particular date, which shall be true and correct in all respects as of that date).
(b) Seller shall have performed and complied in all material respects with all covenants and obligations required by this Agreement and each of the accuracy Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) Buyer shall have received the Seller Required Consents set forth in Section 7.02(c) of the Disclosure Schedules (the “Closing Consents”), each of which shall not be determined as subject to the satisfaction of any condition that specified has not been satisfied or waived, shall be in full force and effect and shall be evidenced by documentation in form and substance reasonably satisfactory to Buyer.
(d) From the date in all respects). For purposes of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ae) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(f) Buyer shall have received a certificate, results dated the Closing Date and signed by a duly authorized officer of operationsSeller, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(g) Buyer shall have received a certificate of the Secretary (or otherwiseequivalent officer) or assets of BrioSeller certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and (ii) the names and signatures of the officers of Seller authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have received a timely basis; provided, however, certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that “Material Adverse Effect” shall Seller is not include any event, occurrence, fact, condition or change, directly or indirectly, arising out a foreign person within the meaning of or attributable to: Section 1445 and 897 of the Code duly executed by Seller.
(i) general economic Seller shall have delivered to Buyer such other documents or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Adams Michael F), Asset Purchase Agreement (AdvanSource Biomaterials Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Meizhou Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Meizhou Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article III shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Meizhou Closing Date with the same effect as though made at and as of such date date, except (except i) those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct in all material respects as of that specified date in all respects). The date, (ii) representations and warranties of Sellers that have qualifications as to materiality or Material Adverse Effect shall be true and correct in all respects and (iii) the representations and warranties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04(a) and Section 3.21 3.22 shall be true and correct in all respects.
(b) Meizhou Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on and the Meizhou Closing Date.
(c) Buyer shall have received a certificate, dated as of the date hereof Meizhou Closing Date and on and as signed by a duly authorized officer of Meizhou Seller, that each of the Closing Date with conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(d) From and after the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “to the Meizhou Closing Date, there shall have not been a Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or .
(e) All closing conditions contained in the aggregate, materially adverse MTA to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers which Buyer’s obligations to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above thereunder are subject shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessessatisfied.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement Closing shall be subject to satisfaction or waiver of the fulfillment or Buyer’s waiver, at following conditions on or prior to the Closing, of each of the following conditionsClosing Date:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained Sell-Side Companies set forth in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and of this Agreement and, without consideration of any further disclosures made pursuant to Section 5.5 of this Agreement, as of the Closing Date with the same effect (as though if made at such time), PROVIDED that, with respect to any representation or warranty that is qualified by a materiality standard, such representation and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 warranty shall be true and correct in all respects on respects.
(b) The Sell-Side Companies shall have performed the covenants and agreements required by this Agreement to be performed by them at or prior to the Closing.
(c) Buyer shall have received from Seller an officers' certificate, executed by the president and the chief financial officer of Seller (in their capacities as such) and dated the Closing Date, confirming satisfaction of the date hereof conditions stated in subsections (a), (b), (i), (j), (k), (l), (n) and on (o) of this Section.
(d) Buyer shall have received an opinion letter of Seller's Counsel, dated the Closing Date, conforming to the provisions of Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.8 and 3.11(e) of this Agreement insofar as such provisions relate to matters of law as distinguished from matters of fact.
(e) Buyer shall have executed and delivered definitive credit documentation with the parties that have provided the financing commitment described in Section 4.6 (or with other lenders satisfactory to Seller), and all of the conditions to funding contained therein shall have been satisfied.
(f) Buyer shall have received certificates from each of the Sell-Side Companies, dated the Closing Date with and signed by the same effect as though made at and as secretary or an assistant secretary of such date (except those representations and warranties that address matters only as of a specified dateSell-Side Company, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: certifying (i) general economic that the attached copies of (A) such Sell-Side Company's articles of incorporation and bylaws or political conditions; certificate of formation and operating agreement, as the case may be, and (iiB) conditions generally affecting resolutions of the industries board of directors of Seller and of Seller as sole member-manager of Sales and Claremont adopted in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of connection with the transactions contemplated by this Agreement; provided furtherAgreement are all true, howevercorrect and complete and remain in full force and effect and (ii) as to the incumbency and specimen signature of each Person executing any of the Transaction Documents on behalf of any of the Sell-Side Companies.
(g) Buyer shall have received certificates as of a recent date as to the existence of Sales, that Claremont and each Claremont Subsidiary under the laws of its jurisdiction of organization.
(h) Buyer shall have received the written resignations of the officers and directors of Sales, Claremont and the Claremont Subsidiaries requested by Buyer. Each such officer and director (whether or not resigning) shall have released Buyer, Sales, Claremont and the Claremont Subsidiaries from any event, occurrence, fact, condition or change referred to liabilities (other than for salaries and employee benefits owed in clauses the ordinary course of business).
(i) through All management bonus plans and programs that involve bonus payments to executives of Claremont and Sales shall have been terminated prospectively, with such termination to be effective on the Closing Date and with none of Buyer, Sales, Claremont or the Claremont Subsidiaries having any liability under any such plans or programs after the Closing Date.
(ivj) immediately above Buyer shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to have received the extent that such eventoriginal books and records, occurrenceand substantially all other documents related thereto, factof Sales, condition or change has a disproportionate effect on Brio compared to other participants in Claremont and the industries in which Brio conducts its businessesClaremont Subsidiaries.
Appears in 1 contract
Samples: Purchase Agreement (Fresh Foods Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement Transactions shall be subject to the fulfillment or Buyer’s ’ waiver, at or prior to the Closing, of each [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. DB2/ 42652053.3 of the following conditions:
(a) 1.2.1 Other than the representations and warranties of Sellers contained in Section 3.01Article 4, Section 3.02, Section 3.03, Section 3.06 5.1 and Section 3.215.2, the representations and warranties of Sellers the Shareholders and the Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01Article 4, Section 3.02, Section 3.03, Section 3.06 5.1 and Section 3.21 5.2 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
1.2.2 Sellers and the Shareholders shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement.
1.2.3 At or prior to the Closing, the Seller Parties shall have delivered to Buyer the Seller Parties Deliverables set forth in Section 2.2.
1.2.4 All registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers listed on Section 8.2.4 of the Disclosure Schedule shall have been filed, made or obtained, as applicable.
1.2.5 From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Xponential Fitness, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.04, Section 3.06 and Section 3.214.24, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.04, Section 3.06 and Section 3.21 4.24 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. Asset Purchase and Sale Agreement, between the Municipality of Anchorage and Chugach Electric Association, Inc., dated as of December [●], 2018
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date. 15
(h) All Encumbrances relating to the Purchased Assets and those listed on Section 4.10(a)(i) of the Disclosure Schedules shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial or otherwisethe “Seller Closing Certificate”).
(j) or assets Buyer shall have received a certificate of Briothe Clerk of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the assembly of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) [Describe Seller corporate authority and incumbency documents.] 15 Prior to signing, the parties will determine whether the MOA must grant any franchise or other similar rights to Buyer in order to provided continued use of the public rights-of-way and other municipal property used in conduct of the Business. If any rights are required for continued use, these rights will be an additional condition precedent. Seller to advise where it is at on this matter. Asset Purchase and Sale Agreement, between the Municipality of Anchorage and Chugach Electric Association, Inc., dated as of December [●], 2018
(l) Buyer shall have received a timely basis; providedcertificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(m) Buyer shall have completed the Additional Buyer Due Diligence and the results of such due diligence shall be satisfactory to Buyer in its sole discretion.
(n) Seller shall have delivered an opinion of counsel, howeverfrom counsel satisfactory to Buyer, in form and substance satisfactory to Buyer, that “Material Adverse Effect” execution and delivery of the transactions to be consummated hereby will not cause outstanding Xxxxxxx Xxxx Tax Exempt Debt to lose its tax exempt status.
(o) Seller shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: have delivered (i) general economic or political conditions; the financial statements referred to in Section 6.17 and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action all Updated Financial Statements required or permitted by this Agreement, except including ML&P’s 2018 audited financial statements. Buyer shall have such other financial statements and information it needs that meets the requirements of Item 9.01 of Form 8-K promulgated by the SEC that permits Buyer to file a Form 8-K pursuant to Item 2.01 following the Closing in a timely manner.
(p) Xxxxx shall have received the opinion(s) of bond counsel and the independent certified public accountant’s report referred to in Section 3.05; 3.02(a) in the form attached hereto as Exhibit [●].
(viq) any changes The IBEW Collective Bargaining Agreement shall be in full force and effect and shall not have expired.
(r) [Provided that the Transition Agreement is in full force and effect, Buyer shall have received a certificate of a duly authorized official of Seller certifying that Seller has satisfied each and all of the requirements of AO No. 2018-1(S) that are applicable Laws to Seller.]
(s) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of Sellers the Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or the Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) The Seller shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for them to conduct the Business as conducted by the Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and the Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of the Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Xxxxx shall have received a certificate of the managing member (or otherwiseequivalent officer) or assets of Briothe Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors, or (b) equivalent, of the ability Seller authorizing the execution, delivery and performance of Sellers to consummate this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby on a timely basis; providedand thereby, however, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Each Designated Employee shall have entered into an employment agreement with Buyer in form and substance as set forth in Exhibit F (the “Material Adverse Effect” Employment Agreements”).
(l) The Seller shall not include any event, occurrence, fact, condition have delivered to Buyer the Closing Balance Sheet and such other documents or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pressure Biosciences Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.24, the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents Documents, and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers and Sellers’ Representative shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers and Sellers’ Representative shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, Sellers, the Company, or any of the Acquired Subsidiaries which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Sellers shall have delivered to Buyer an executed certificate of the Secretary (or other executive officer) of the Company certifying: (A) that the Company’s certificate of formation, and the operating agreement, bylaws or other applicable organizational documents (which are to be attached to the certificate) are true and correct as of immediately prior to the Closing, and (B) certificates of good standing showing that the Company is duly formed and in good standing and has a legal existence in the state of its formation and in each of the states where the Company is qualified to do business.
(g) Buyer shall have received a certificate, results dated the Closing Date and signed by each of operationsthe Sellers, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(financial h) Sellers shall have delivered to Buyer an executed certificate of the Secretary (or otherwiseother executive officer) of the Company and each of the Acquired Subsidiaries certifying: (A) that the certificate of formation, the operating agreement, bylaws or assets other applicable organizational documents (which are to be attached to the certificate) of Briothe Company and each of the Acquired Subsidiaries are true and correct as of immediately prior to the Closing, and (B) certificates of good standing showing that the Company and each of the Acquired Subsidiaries is duly formed and in good standing and has a legal existence in the state of its formation and in each of the states where the Company is qualified to do business.
(i) Sellers shall have delivered to Buyer executed Membership Interest Powers or similar instruments of assignment and conveyance, transferring the Membership Interests to the Buyer in substantially the form attached as Exhibit C, or otherwise in form and substance reasonably satisfactory to the Buyer.
(bj) Sellers shall have delivered certifications duly executed by each Seller in the ability form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv)(A) and otherwise reasonably satisfactory to the Buyer.
(k) Sellers shall have delivered to Buyer the books and records of the Company and the Acquired Subsidiaries.
(l) Sellers shall have delivered to consummate Buyer the Cixxxxx Xmployment Agreement in substantially the form attached hereto as Exhibit D, duly executed by Cixxxxx.
(m) Sellers shall have delivered to Buyer the Esxxxxxx Xmployment Agreement in substantially the form attached hereto as Exhibit E, duly executed by Anxxxxx Xxxxxxxx.
(n) Sellers shall have obtained the written consent of Bank of America, the Naples property landlord, and such other parties as provided in Schedule 7.02(m) with respect to the consummation of the transactions contemplated hereby on herein, in a timely basis; providedform of evidence reasonably satisfactory to Buyer.
(o) Buyer shall have completed and shall be satisfied, howeverin its sole and absolute discretion, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out with the results of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting its diligence investigation of the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts Company and each of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rulesAcquired Subsidiaries, including GAAP; or confirmation of the historical financial results and financial projections and audited financial statements of the Company and each of the Acquired Subsidiaries.
(viip) the public announcement, pendency or completion of Buyer shall have received acquisition financing for the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition is reasonably necessary to consummate the transactions contemplated by this Agreement in the discretion of the Buyer.
(q) Buyer shall have received Lock-Up Agreements duly executed by each of Anxxxxx Xxxxxxx xnd Anxxxxx Xxxxxxxx xn substantially the form attached hereto as Exhibit F.
(r) Buyer shall have received a Lock-Up Agreement duly executed by Joxxxx Xxxxxxx xn substantially the form attached hereto as Exhibit G.
(s) Sellers shall have delivered to Buyer such other documents or change referred instruments as Buyer reasonably requests and are reasonably necessary to in clauses consummate the transactions contemplated by this Agreement.
(it) through (iv) immediately above Sellers shall be taken into account operating the Immokalee Road property in determining whether a Material Adverse Effect has occurred or could reasonably be expected compliance with the existing wholesale nursery permit or, if applicable, any written plan agreed to occur between the Company and Coxxxxx Xounty, to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesBuyer’s reasonable satisfaction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Q2Earth Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by under this Agreement shall be are subject to the fulfillment or Buyer’s waiver, satisfaction at or prior to the Closing, of each Closing of the following conditions, but Buyer may waive compliance with any such conditions in writing:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the All representations and warranties of Sellers contained in this Agreement, Agreement were true and correct as of the Transaction Documents date hereof and any certificate or other writing delivered pursuant hereto shall will be true and correct in all material respects (in to the case of any representation or warranty extent not qualified by materiality or Material Adverse Effectmateriality) or in all respects (to the extent qualified by materiality) at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing, except for those representations and warranties which address matters only as of a particular date (which will be true and correct only as of such date) and Buyer will have received a certificate to such effect, in form and substance reasonably satisfactory to Buyer, executed on behalf of the Companies by an executive officer of the Companies.
(b) Sellers will have performed and complied in all material respects with all the covenants and agreements required by this Agreement to be performed or complied with by them at or prior to the Closing, including without limitation the delivery of all items required to be delivered by them pursuant to Section 2.10, and Buyer will have received a certificate to such effect, in form and substance reasonably satisfactory to Buyer, executed on behalf of the Companies by an executive officer of the Companies.
(c) All required contractual and governmental consents, approvals, orders, licenses, bonds or authorizations set forth on Schedule 3.7, and all consents and approvals required under the HSR Act, will have been obtained and all contractual or governmental notices set forth on Schedule 3.7, will have been given.
(d) There will be no pending or threatened litigation in any court or any proceeding before or by any Governmental Body to restrain or prohibit or obtain damages or other relief with respect to this Agreement or the other Transaction Documents or the consummation of the transactions contemplated by this Agreement or as a result of which Buyer could be required to dispose of any assets or operations of Buyer or its Affiliates (including any Material Assets or material operations to be acquired) or to comply with any material restriction on the manner in which Buyer or its Affiliates conduct their operations (including the operations of the Companies)
(e) All Liens on the assets of the Companies or the Closing Shares, other than Liens on assets identified on Schedule 8.1(e) to remain after Closing, will have been released and Sellers will have delivered to Buyer executed UCC-3 termination statements or other releases satisfactory to Buyer to evidence such releases.
(f) The employment related agreements described on Schedule 8.1(f) shall have been terminated.
(g) The Companies will have delivered Associate Employment Agreements to Buyer, substantially in the case form of any representation Exhibit C-1, executed by the employees of the Companies set forth on Schedule 8.1(g)
(h) The Companies will have delivered Executive Employment Agreements to Buyer, substantially in the form of Exhibit C-2, executed by the executives of the Companies set forth on Schedule 8.1(h).
(i) The Companies will have delivered Noncompetition Agreements to Buyer, substantially in the form of Exhibit D-1, executed by the Stockholders of Holding set forth on Schedule 8.1(i).
(j) The Companies will have delivered Noncompetition Agreements to Buyer, substantially in the form of Exhibit D-2, executed by the employees of Holding set forth on Schedule 8.1(j).
(k) The Companies will have delivered to Buyer a legal opinion of the Companies’ counsel covering such matters as Buyer may reasonably request and in form and substance reasonably satisfactory to Buyer.
(l) As evidenced by a binder or warranty not qualified endorsement issued by materiality the insurance company for each applicable policy, the Companies will have purchased a six-year extended reporting period on the Companies’ current policy that covers directors’ and officers’ insurance and indemnification, employment practices liability and fiduciary liability insurance.
(m) No more than two stockholders of Holding owning no more than one percent of the Closing Common Shares in the aggregate shall have failed to have (i) either entered into this Agreement or Material Adverse Effectentered into Joinder Agreements and (ii) on delivered a certificate, in form and substance reasonably satisfactory to Buyer, to the effect that all of the representations and warranties of that Stockholder contained in this Agreement were true and correct as of the date hereof and on will be true and correct in all material respects (to the extent not qualified by materiality) or in all respects (to the extent qualified by materiality) at and as of the Closing Date with the same effect as though such representations and warranties were made at and as of such date (the Closing, except for those representations and warranties that which address matters only as of a specified date, the accuracy of particular date (which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall will be true and correct in all respects on and only as of such date).
(n) This Agreement shall have been adopted and the date hereof Merger shall have been approved by the requisite vote of the stockholders of Holding, as may be required by Massachusetts Law, and on by any applicable provisions of Holding’s articles of incorporation and as bylaws (the “Stockholder Approval”).
(o) No more than two stockholders of Holding owning no more than one percent of the Closing Date Common Shares in the aggregate shall have exercised or given notice of their intent to exercise its dissenters’ or appraisal rights in accordance with Section 13.23 of Massachusetts Law.
(p) All of the same effect Stock Options will have been canceled.
(q) Holding shall have terminated the Stock Option Plan.
(r) The JJW 401(k) Plan shall have been terminated as though made at and as of such date described in Section 6.12.
(except those representations and warranties that address matters only as of a specified dates) The Companies shall have terminated the Credit Agreement dated March 20, 2006, among J.J. Wild Holdings, Inc., J.J. Wild, Inc., the accuracy of which shall be determined other credit parties signatory thereto, the lenders listed therein and General Electric Capital Corporation, as of that specified date in Administrative Agent, and all respects). For purposes of this Agreement “Material Adverse Effect” means any eventpledges, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to security interests and agreements relating thereto.
(at) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a No Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesshall exist.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by in this Agreement shall be subject to the fulfillment or Buyer’s waiver, at on or prior to the Closing, Closing Date of each of the following conditions:
(a) Other than Each of the representations and warranties of Sellers the Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Article III and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article VII shall be true and correct in all material respects (in other than those representations and warranties of the case of any representation or warranty Seller Parties that are qualified by materiality or Material Adverse Effect) or , which shall be true and correct in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectrespects) on and as of the date hereof made and (having been deemed to have been made again on and as of the Closing Date with in the same effect as though made at language) on and as of the Closing Date, except (i) to the extent that any such date (except those representations and warranties that address matters only representation or warranty is made as of a specified date, the accuracy of in which case such representation or warranty shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be have been true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date or (ii) any such inaccuracies or breaches which have been remedied in all respects). For purposes of this Agreement “Material Adverse Effect” means any eventaccordance with Section 7.3 or, occurrence(iii) in the aggregate, fact, condition or change that is, have not had or could not reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or have a Material Adverse Effect.
(b) Each of the ability Seller Parties shall have performed and complied in all material respects with each of Sellers the covenants and agreements required by this Agreement to consummate be performed or complied with by it on or prior to the Closing Date.
(c) Buyer shall have received certificate executed by a duly authorized officer of each Seller Party dated the Closing Date, representing and certifying that the conditions described in Section 9.2(a) and Section 9.2(b) have been satisfied.
(d) No Order shall have been entered and be in effect by any Governmental Body of competent jurisdiction, and no statute, rule, regulation or other requirement shall have been promulgated or enacted and be in effect, that on a temporary or permanent basis restrains, enjoins or invalidates the transactions contemplated herein.
(e) Buyer shall have received a reserve report from an independent third party engineering firm, acceptable to Buyer, supporting the values of the Oil and Gas Properties contained in Seller’s Records.
(f) Buyer shall have received audited financial statements of the Company as of the Effective Date prepared by an independent auditor acceptable to Buyer.
(g) Buyer shall have entered into a credit agreement with a third party lender in form and substance reasonably acceptable to Buyer and/or raised new capital in an aggregate amount at least equal to the Purchase Price.
(h) Buyer shall have received certified copies of the resolutions duly adopted by each of Seller’s and the Company’s board of managers or other governing body, as applicable, authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: and thereby.
(i) general economic or political conditions; The Tangible Personal Property shall have been transferred to the Company from Seller pursuant to an assignment(s) in form and substance reasonably acceptable to Buyer.
(iij) conditions generally affecting The Excluded Property shall have been transferred from the industries Company pursuant to an assignment in which Brio operates; form and substance reasonably acceptable to Buyer.
(iiik) any changes Buyer shall have received a certificate of non-foreign status in financial or securities markets in general; (iv) acts of war (whether or not declared)form, armed hostilities or terrorismdate and content reasonably acceptable to Buyer, or executed and delivered by the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except Company pursuant to Section 3.05; 1445 of the Code and the Treasury Regulations promulgated thereunder.
(vil) any changes in applicable Laws or accounting rulesBuyer shall have received a certificate of existence and good standing of the Company from the Secretary of State of the State of Texas.
(m) Buyer shall have received the written resignation of each of the Company’s managers and officers, including GAAP; or (vii) such resignation to be effective immediately upon the public announcement, pendency or completion consummation of the transactions contemplated by in this Agreement; provided further, howeverin form and substance reasonably acceptable to Buyer.
(n) Buyer shall have received evidence of a right to prior notice of and a ten day right to match all of the terms of any offer if Seller decides, that any eventwithin two years after the Effective Date, occurrence, fact, condition or change referred to in clauses sell properties known as Xxxxxxxx Island and Cedar Point and all assets related thereto.
(io) through (ivBuyer shall have received the membership interest certificate(s) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur representing 100% of the issued and outstanding membership interest of Company duly endorsed over to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic American Oil Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.03 and Section 3.214.22, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.03(a) and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date ; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) Buyer shall have received (at Seller’s expense) an owner’s title insurance policy with respect to each Owned Real Property, results issued by a nationally recognized title insurance company acceptable to Buyer, written as of operationsthe Closing Date, condition insuring Buyer in such amounts and together with such endorsements, and otherwise in such form, as Buyer shall require. Such title insurance policy shall insure fee simple title to each Owned Real Property, free and clear of all Encumbrances other than Permitted Encumbrances and those listed on Section 4.10(a)(i) of the Disclosure Schedules. Buyer shall have received (financial at Seller’s expense) an appropriately certified ALTA/NSPS Land Title Survey showing no Encumbrances other than the Permitted Encumbrances and those listed on Section 4.10(a)(i) of the Disclosure Schedules, and otherwise in form and substance satisfactory to Buyer, for each of the Owned Real Properties.
(i) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(j) Xxxxx shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Seller Closing Certificate”).
(k) Xxxxx shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(l) Xxxxx shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(m) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(n) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Crown Electrokinetics Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Kecy contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 and Section 3.214.22, the representations and warranties of Sellers Kecy contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectmateriality) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectmateriality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Kecy contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Other than the representations and warranties of Mxxxxx contained in Section 5.01, Section 5.02, and Section 5.07, the representations and warranties of Mxxxxx contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty not qualified by materiality) or in all material respects (in the case of any representation or warranty qualified by materiality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes The representations and warranties of Mxxxxx contained in Section 5.01, Section 5.02, and Section 5.07 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(c) Kecy shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(d) Mxxxxx shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(e) No Action shall have been commenced against Buyer or a Seller, which would legally prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(f) All approvals, consents and waivers that are listed on Schedule 4.03 and Schedule 5.03 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(g) From the date of this Agreement “Material Adverse Effect” means Agreement, there shall not have occurred any eventevent which is material to the Business, occurrenceas determined by reference to the ordinary course of Business consistent with past practice since the date of the Interim Financial Statements, fact, condition nor shall any event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in any such material event.
(ah) Sellers shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(i) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Kecy as of the Closing Date.
(j) Buyer shall have received an owner's title insurance policy with respect to the Hxxxxx Real Property (the cost and expense of which shall be shared equally between Buyer and Mxxxxx), results issued by a nationally recognized title insurance company acceptable to Buyer, written as of operationsthe Closing Date, condition insuring Buyer in such amounts and together with such endorsements, and otherwise in such form, as Mxxxxx and Buyer shall mutually agree upon. Such title insurance policy shall insure fee simple title to each Hxxxxx Real Property, free and clear of all Encumbrances other than Permitted Encumbrances and those listed on Schedule 5.04(a)(i). Buyer shall have received (financial at Buyer’s sole cost and expense) an appropriately certified ALTA/ACSM Land Title Survey showing no Encumbrances other than the Permitted Encumbrances and those listed on Schedule 5.04(a)(i), and otherwise in form and substance satisfactory to Buyer, for each of the Owned Real Properties.
(k) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(l) Buyer shall have received: (i) a certificate, dated the Closing Date and signed by a duly authorized officer of Kecy, that each of the conditions set forth in Schedule 8.02(a) and Schedule 8.02(c) have been satisfied; and (ii) a certificate, dated the Closing Date and signed by a duly authorized manager or otherwisemember of Mxxxxx, that each of the conditions set forth in Section 8.02(b) and Section 8.02(c) have been satisfied (collectively, the “Sellers’ Closing Certificates”).
(m) Buyer shall have received: (i) a certificate of the Secretary or assets an Assistant Secretary (or equivalent officer) of BrioKecy certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Kecy authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; and (ii) a timely basis; providedcertificate of the manager or an authorized member of Mxxxxx certifying that attached thereto are true and complete copies of all resolutions adopted by the members of Mxxxxx, howeverauthorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that “Material Adverse Effect” all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby
(n) Buyer shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable tohave received: (i) general economic or political conditionsa certificate of an officer of Kecy certifying the names and signatures of the officers of Kecy authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder; and (ii) conditions generally affecting a certificate of the industries in which Brio operates; (iii) any changes in financial manager or securities markets in general; (iv) acts an authorized member of war (whether or not declared), armed hostilities or terrorism, or Mxxxxx certifying the escalation or worsening thereof; (v) any action required or permitted by names and signatures of the manager and members of Mxxxxx authorized to sign this Agreement, except the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(o) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes that Mxxxxx is not a foreign person within the meaning of Section 1445 of the Code duly executed by Mxxxxx.
(p) Buyer shall have received from a legal opinion from Kecy’s attorney, addressed to Buyer and dated as of the Closing, in applicable Laws a form satisfactory to Buyer.
(q) Buyer shall have completed all its business, legal, accounting and environmental due diligence with respect to the Business and shall, in its sole judgment, be satisfied with the results thereof.
(r) The board of directors of Buyer has consented to the transactions contemplated under this Agreement and the other Transaction Documents.
(s) Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (ARC Group Worldwide, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement Closing shall be subject to the fulfillment or Buyer’s waiver, at or prior following conditions except to the Closing, of each of the following conditionsextent waived in writing by Buyer:
(a) Other than (i) The representations and warranties of Seller contained in Section 3.3 of this Agreement shall be true and correct in all but de minimis respects as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties that expressly speak as of a specified date, which representations and warranties shall be true and correct in all but de minimis respects only as of such specified date), (ii) (A) the representations and warranties of Sellers Seller contained in the first two sentences of Section 3.01, 3.1 and in Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto 3.4(a) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and Closing Date as though made on and as of the Closing Date with the same effect as though made at and as of such date (except those for representations and warranties that address matters only expressly speak as of a specified date, the accuracy of which representations and warranties shall be determined true and correct as of that such specified date in all respectsdate). The , and (B) the representations and warranties of Sellers Seller contained in Section 3.013.1 (other than the representations and warranties set forth in the foregoing clause (ii)(A)), Section 3.02, Section 3.03, Section 3.06 3.2 and Section 3.21 3.19 of this Agreement, without giving effect to any “materiality” qualifications therein, shall be true and correct in all material respects on and as of the date hereof and Closing Date as though made on and as of the Closing Date with the same effect as though made at and as of such date (except those for representations and warranties that address matters only expressly speak as of a specified date, the accuracy of which representations and warranties shall be determined true and correct in all material respects only as of that such specified date date), and (iii) the representations and warranties of Seller contained in all respects). For purposes Article III of this Agreement (other than the representations and warranties set forth in the foregoing clauses (i) and (ii)), without giving effect to any “materiality” or “Material Adverse Effect” means any eventqualifications therein, occurrenceshall be true and correct as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties that expressly speak as of a specified date, factwhich representations and warranties shall be true and correct as of such specified date), condition or change that is, or could reasonably except for such failures to be expected to become, true and correct as would not individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or aggregate have a Material Adverse Effect;
(b) Seller shall have in all material respects performed the ability obligations and complied with the covenants (other than Section 5.27 and those covenants contained in Section 5.31 of Sellers the Seller Disclosure Schedule) required by this Agreement to consummate be performed or complied with by it at or prior to the transactions contemplated hereby on Closing;
(c) Seller shall have delivered to Buyer a timely basiscertificate of Seller, dated the Closing Date, to the effect of the foregoing Section 6.2(a) and Section 6.2(b); provided, however, that “Material Adverse Effect” and
(d) There shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether have occurred a Material Adverse Effect has occurred or could reasonably be expected to occur to since the extent date of this Agreement that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in is continuing as of the industries in which Brio conducts its businessesClosing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Trinity Industries Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 4.01 and Section 3.214.13, the representations and warranties of Sellers the Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 4.01 and Section 3.21 4.13 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Each Seller Party shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or any Seller Party, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 7.01(b) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, is or are reasonably likely to be expected to result in a Material Adverse Effect.
(af) Each applicable Seller Party shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) All Encumbrances, including those listed in Section 4.04 of the Disclosure Schedules, relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and the Seller Parties shall have delivered to Buyer written evidence, in form reasonably satisfactory to Buyer, of the release of such Encumbrances.
(h) The Seller Parties shall have delivered to Buyer written evidence, in form reasonably satisfactory to Buyer, that, effective as of immediately prior to the Closing: (A) Vertex Refining has exercised the Purchase Option and acquired good and clean title to all issued and outstanding equity interests in Bango Oil; and (B) the businessSeller Parties have acquired good and clean title to all of the Purchased Assets that were previously leased by Vertex Refining under the Personal Property Lease and the Equipment Leases and in which Vertex Refining had a security interest pursuant to the Secured Promissory Note.
(i) Buyer shall have received a certificate, results dated the Closing Date and signed by a duly authorized officer of operationseach Seller Party, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of Brioeach Seller Party certifying that attached thereto are true and complete copies of all resolutions adopted by the members, or (b) managers and board of directors, as applicable, of each Seller Party authorizing the ability execution, delivery and performance of Sellers to consummate this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting each Seller Party certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of each Seller Party authorized to sign this Agreement, except the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that no Seller Party is a foreign person within the meaning of Section 1445 of the Code duly executed by each Seller Party.
(m) Each Seller Party shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) Buyer shall have consummated the Amarantus Diagnostics Acquisition;
(i) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(j) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a), Section 7.02(b), Section 7.02(c) and Section 7.02(d) have been satisfied (financial the "Seller Closing Certificate").
(k) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(l) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(m) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe "FIRPTA Certificate") any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(n) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of Sellers contained in Article IV of this Agreement, the Transaction Documents Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by them prior to the Effective Time; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Sellers, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed under the heading “Material Approvals” on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect.
(f) Sellers shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) Sellers shall have obtained all necessary consents under the Planning Act (Ontario) for the conveyance of the Owned Real Properties in Ontario, Canada to Buyer;
(h) Buyer shall have received all Permits that are necessary for them to conduct the Business as conducted by Sellers as of the Closing Date.
(i) Buyer shall have received (at Buyer’s expense) an owner’s title insurance policy with respect to each Owned Real Property, issued by a nationally recognized title insurance company acceptable to Buyer, acting reasonably, written as of the Closing Date, insuring Buyer in such amounts and together with such endorsements as are generally available for properties such as the Owned Real Properties and otherwise in the form acceptable to Buyer, acting reasonably. Such title insurance policy shall insure fee simple title to each Owned Real Property, free and clear of all Encumbrances in all material respects other than Permitted Encumbrances and those listed on Section 4.10(a)(i) of the Disclosure Schedules. Buyer shall have received (at Buyer’s expense) a building and property location survey and real property report prepared by a qualified Ontario land surveyor showing no material Encumbrances other than Permitted Encumbrances and any Encumbrances listed on Section 4.10(a)(i) of the Disclosure Schedules, and otherwise in form and substance satisfactory to Buyer, acting reasonably, for each of the Owned Real Properties.
(j) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(k) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Seller Closing Certificate”).
(l) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the board of directors of such Seller authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in and the aggregate, materially adverse to (a) other Transaction Documents and the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basisand thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of each Seller authorized to sign this Agreement, except pursuant the Transaction Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vim) any changes in applicable Laws Sellers shall have delivered to Buyer duly executed counterparts of retention agreements by each of Xxxxxxxxxxx Luck, Xxx Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, and Xxxxx Xxxxx (collectively, the “Retention Agreements”).
(n) Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, Article IV (other than the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Seller Fundamental Representations) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date and the Seller Fundamental Representations shall be true and correct in all respects, in each case, with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date date); provided , however , that representations and warranties qualified by Material Adverse Effect or other materiality qualifier must instead be true and correct in all respects;
(b) Seller shall have duly performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them prior to or at the Closing;
(c) Seller shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement and the Employment Agreements) and such other documents and deliverables set forth in Section 3.02(a). For purposes ;
(d) Bxxxx shall have received a certificate, dated the Closing Date and signed on behalf of Seller by a duly authorized officer (in such Person’s capacity as such and not individually), that each of the conditions set forth in Section 7.02(a)and Section 7.02(b) have been satisfied (the “Closing Certificate”);
(e) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller;
(f) Since the date of this Agreement “Agreement, there shall not have been a Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.;
Appears in 1 contract
Samples: Asset Purchase Agreement (Agriforce Growing Systems Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s Xxxxx's waiver, at or prior to the each Closing, of each of the following conditions:
(a) With respect only to the consummation of the Second Closing, but not the First Closing, approval of the acquisition of the Company by the Buyer's shareholders.
(b) Other than the representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05 and Section 3.213.24, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the First Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof and on and as of the First Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of .
(c) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition to be performed or change that is, complied with by it prior to or could reasonably be expected to become, individually or in on the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basisClosing Date; provided, howeverthat, with respect to agreements, covenants and conditions that “Material Adverse Effect” are qualified by materiality, Seller shall not include have performed such agreements, covenants and conditions, as so qualified, in all respects.
(d) No Action shall have been commenced against Buyer, Seller or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any eventGovernmental Authority, occurrenceand be in effect, factwhich restrains or prohibits any transaction contemplated hereby.
(e) All approvals, condition consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or change, directly or indirectly, arising out prior to the Closing.
(f) Intentionally deleted.
(g) Xxxxx shall have received resignations of or attributable to: the directors and officers of the Company pursuant to Section 5.06.
(h) Intentionally deleted.
(i) general economic or political conditions; Intentionally deleted.
(iij) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesIntentionally deleted.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 each Seller Party and Section 3.21, the representations and warranties of Sellers Company contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means Effect on the Company, nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect on the Company.
(ae) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the businessparties thereto and true and complete copies thereof shall have been delivered to Buyer.
(f) Buyer shall have received a certificate, results dated the Closing Date and signed by a duly authorized officer of operationseach Seller Party and a duly authorized officer of the Company, condition that each of the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(d) have been satisfied.
(financial g) Buyer shall have received a certificate of the Secretary (or otherwiseequivalent officer) of each Seller Party and a certificate of the Secretary (or assets equivalent officer) of Briothe Company certifying that attached thereto are true and complete copies of all resolutions adopted by the governing body of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(h) Seller shall have delivered to Buyer a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out Secretary’s certificate of or attributable to: the Company certifying as to (i) general economic or political conditions; the Certificate of Formation and any Certificates of Amendment of the Company (certified by the Secretary of State of Texas within five Business Days of Closing), (ii) conditions generally affecting the industries in which Brio operatesAmended and Restated Regulations of the Company; (iii) any changes in financial or securities markets in general; the resolutions of the members of the Company authorizing the Transactions and (iv) acts the incumbency of war the officers executing documents or instruments on behalf of the Company.
(whether i) Seller shall have delivered to Buyer a good standing certificate (or not declared), armed hostilities its equivalent) for the Company from the secretary of state or terrorism, similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(j) Seller and the Company shall have delivered to Buyer the written resignations of the officers of the Company and evidence that the officer’s signature authority with respect to Company bank accounts has been revoked.
(k) Seller shall have delivered to Buyer such other documents or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; .
(l) The combined aggregate Title Defect Amount and the Environmental Defect Amount, net of all Title Benefit Offsets, shall not exceed twenty-five percent (25%) of the Purchase Price.
(m) Buyer shall have completed its Title Diligence Review, provided furtherhowever that Buyer shall have until September 24, however2015 to complete its Title Diligence Review, and in the event that Buyer has not completed its Title Diligence Review by said date, then Buyer shall have waived this condition in its entirety.
(n) Buyer shall have completed its Environmental Diligence Review, provided however that Buyer shall have until September 24, 2015 to complete its Environmental Diligence Review, and in the event that Buyer has not completed its Environmental Diligence Review by said date, then Buyer shall have waived this condition in its entirety.
(o) Seller and the Company shall have delivered evidence, reasonably satisfactory to Buyer, that EnerVest Energy Institutional Fund XI-B, L.P. has relinquished any event, occurrence, fact, condition rights it has to a net profits overriding royalty interest or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur similar interest with respect to the extent Assets and that it shall have no such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared further rights with respect to other participants in the industries in which Brio conducts its businessesAssets.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (EV Energy Partners, LP)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement Transactions shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01Sections 4.1, Section 3.024.2, Section 3.035.1, Section 3.06 5.2 and Section 3.215.27, the representations and warranties of Sellers Shareholders and Company contained in this Agreement, the Transaction Documents Article 4 and any certificate or other writing delivered pursuant hereto Article 5 shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effectmateriality) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectmateriality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Shareholders and the Company contained in Section 3.01Sections 4.1, Section 3.024.2, Section 3.035.1, Section 3.06 5.2 and Section 3.21 5.27 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes ;
(b) The Company and the Shareholders shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company and the Shareholders shall have performed such agreements, covenants and conditions, as so qualified, in all respects;
(c) All registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers listed on Section 9.2(c) of the Disclosure Schedule shall have been filed, made or obtained, as applicable;
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect;
(e) Buyer shall have received estoppel certificates, in customary form and substance, from the lessor of each Leased Real Property addressed to the extent that such eventCompany;
(f) The Company shall have delivered to Buyer an Estimated Closing Statement pursuant to Section 3.2(a);
(g) Each holder of an LTI Unit will have executed and delivered a written consent to the termination of its respective LTI Unit, occurrenceas applicable, factand release, condition in exchange for the right to receive LTI Holder Closing Consideration Payment(s) as set forth in Section 2.5(e) of this Agreement (the “LTI Holder Release & Termination Agreement”);
(h) Each Promised Individual will have executed and delivered a written consent to the termination of his or change has her respective rights to receive payments from any Group Company, and release, in connection with the Promised Individual Agreements in exchange for the right to receive Promised Individual Closing Consideration Payment(s) as set forth in Section 2.5(f) of this Agreement (the “Promised Individual Release & Termination Agreement”);
(i) Buyer and TAG Solutions, LLC shall mutually agree to a disproportionate effect on Brio compared form of sublease agreement for ANS Advanced Network Services, LLC to other participants utilize the premises located at 12 Xxxxxxx Xxxx, Xxxxxx, XX 00000; and
(j) The Company and the Shareholders shall have delivered each of the closing deliverables set forth in the industries in which Brio conducts its businessesSections 2.2 and 2.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Charge Enterprises, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary (or change, directly or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(m) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than Buyer shall have completed its due diligence investigation of Gravitas and the Business, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation;
(b) The representations and warranties of the Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Gravitas contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date the Closing Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). ;
(c) The representations Sellers and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Gravitas shall have duly performed and Section 3.21 shall be true and correct complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date;
(d) No Action shall have been commenced against Buyer, Parent, the Sellers or Gravitas, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and as of the date hereof and on and as of be in effect, which restrains or prohibits any transaction contemplated hereby;
(e) Buyer shall have received a certificate, dated the Closing Date with the same effect as though made at and as signed by a duly authorized officer of such date (except those representations Gravitas and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, howeverSellers, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion each of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to conditions set forth in clauses (iSection 8.02(b) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.and 8.02
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.24, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof (or, in respect of the Additional Sellers, the date that they become party to this Agreement) and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof (or, in respect of the Additional Sellers, the date that they become party to this Agreement) and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes the avoidance of doubt, all terms, defined or otherwise, used in any representation and warranty of the Sellers shall be interpreted as of Closing.
(b) Buyer shall have received updated Disclosure Schedules of the Seller, accurate as of the Closing Date, and, without limitation, taking into account the completion of the Cannabiotix Acquisition.
(c) Sellers shall have duly performed and complied with, in all material respects, all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(d) No Action shall have been commenced against Buyer, Sellers or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(e) All approvals, consents and waivers that are listed on Schedule 3.05 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(f) From the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company Parties.
(g) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(h) Buyer shall have received resignations of the directors and officers of the Company Parties pursuant to Section 5.06.
(i) At least three Business Days before Closing, Sellers’ Representative shall have delivered to Buyer the Closing Indebtedness Certificate.
(j) Sellers’ Representative shall have delivered to Buyer the Estimated Closing Working Capital Statement contemplated in Section 2.04(a)(ii).
(k) Sellers’ Representative shall have delivered to Buyer a good standing certificate (or its equivalent) for each Company Party from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which such Company Party is organized or qualified to do business.
(l) Sellers shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Sellers are not foreign persons within the meaning of Section 1445 of the Code.
(m) Sellers shall have delivered, or caused to be delivered, to Buyer the Interest Assignments.
(n) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Sellers, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(o) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Sellers authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in and the aggregate, materially adverse to (a) Ancillary Documents and the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(p) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Sellers certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Sellers authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(viq) any changes in applicable Laws The Cannabiotix Acquisition shall have closed and the Additional Sellers shall have entered into an agreement to be bound by the terms of this Agreement as a “Seller” as if an original party hereto.
(r) Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests not less than 48 hours prior to Closing and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further.
(s) Sellers shall have delivered to Buyer the executed Xxxxx Employment Agreement.
(t) Sellers shall have delivered to Buyer an estoppel certificate for the Real Property lease identified in Disclosure Schedule Section 7.02(t), howeverexecuted by the applicable landlord substantially in the form contemplated in the applicable lease.
(u) The Operating Agreement shall have been amended to expressly require the Partnership Representative (as such term is defined in the Operating Agreement) to make a “push-out” election under Section 6226 of the Code, that any eventand such amendments shall be reasonably satisfactory to Buyer.
(v) Sellers’ Representative shall have delivered to Buyer the Allocation Schedule, occurrencewith such payments as set forth in this Agreement.
(w) Sellers shall have delivered to Buyer an executed release by [***], factpursuant to which [***] shall, condition or change referred to in clauses upon receipt of payment at the Closing, (i) through release the Company, Buyer and Parent of all claims relating to her profits interest and (ivii) immediately above agree to the Lock-Up for the GTI Shares she receives at the Closing, the schedule for which her GTI Shares shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably released from the Lock-Up to be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect same as the Sellers.
(x) The Company shall have made all bonus payments set forth on Brio compared to other participants in the industries in which Brio conducts its businessesDisclosure Schedule 3.08(r).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) All approvals, consents and waivers that are listed in Section 3.05 or on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ae) Seller shall have duly executed and delivered the businessAssignment to Buyer.
(f) The other Transaction Documents including the Employment Agreement as set forth in Section 5.14, results shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of operationsSeller, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(financial h) Seller shall have delivered to Buyer a good standing certificate (or otherwiseits equivalent) for the Company from the secretary of state or assets similar Governmental Authority of Brio, the jurisdiction under the Laws in which the Company is organized.
(i) Seller shall have delivered to Buyer such other documents or (b) the ability of Sellers instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) Agreement provided such request does not enlarge or extend any changes in applicable Laws existing liability or accounting rules, including GAAP; obligation of Seller or (vii) the public announcement, pendency impose on Seller any new or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition additional liability or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesobligation.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (National Waste Management Holdings, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
: (a) Other than the representations and warranties of Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.03 and Section 3.214.21, the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Section
(b) Sellers shall have duly performed and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects).
(c) No Action shall have been commenced against Buyer or either Seller which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules and designated with an asterisk (*) thereon shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing. (e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could would reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has result in a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesMaterial Adverse Effect.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer and Advance America to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.23 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). Other than the representations and warranties of Seller Parties contained in Section 3.01, Section 3.02, and Section 3.23, the representations and warranties of Sellers Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Sellers shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants, and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by them prior to or on and as of the Closing Date Date.
(c) No Action shall have been commenced by any Governmental Authority against Advance America, Buyer, Sellers, or Parent, (i) involving any challenge to or seeking any material relief (monetary or otherwise) in connection with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of transactions contemplated by this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that isAgreement, or could (ii) that would reasonably be expected to becomehave the effect of preventing, delaying, making illegal, imposing material limitations or conditions on, or otherwise materially interfering with or making materially more costly any of the transactions contemplated by this Agreement.
(d) All approvals, consents, and waivers that are listed on Schedule 7.02(d) (which shall exclude all leases for the Locations) shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) For each Necessary Permit listed on Schedule 3.18(b), at the sole discretion of Buyer (subject to applicable Law), either (i) Buyer shall have obtained a corresponding new Permit from the applicable issuing Governmental Authority, or (ii) the applicable Seller shall have transferred such Permit to Buyer.
(f) Sellers shall have delivered to Buyer evidence, in form and substance reasonably acceptable to Buyer, of the release of any Encumbrances (other than Permitted Encumbrances) on the Purchased Assets.
(g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(h) The Transaction Documents (other than this Agreement) shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(i) general economic or political conditions; Buyer shall have received a certificate, in substantially the form attached hereto as Exhibit A, dated the Closing Date and signed by Parent, certifying (i) that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial names and signatures of the officers or securities markets in general; (iv) acts managers of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by each Seller Party authorized to sign this Agreement, except pursuant the Transaction Documents, and the other documents to be delivered hereunder and thereunder.
(j) Each Seller shall have delivered to Buyer a duly executed counterpart to a xxxx of sale, assignment, and assumption agreement, in substantially the form attached hereto as Exhibit C, with respect to the Purchased Assets and the Assumed Liabilities of such Seller.
(k) Each Seller shall have delivered to Buyer a duly executed counterpart to an assignment and assumption of Assumed Contracts, in substantially the form attached hereto as Exhibit D, with respect to the Assumed Contracts of such Seller. The appropriate Seller Parties shall have delivered to Buyer a duly executed counterpart to a domain name assignment, in substantially the form attached hereto as Exhibit E.
(l) The appropriate Seller Parties shall have delivered to Buyer a duly executed counterpart to a trademark assignment agreement, in substantially the form attached hereto as Exhibit F.
(m) Sellers shall have delivered possession of all of the Purchased Assets and all of the Held Collateral to Buyer, which delivery may be effected by turning over control of the Locations for all of the Purchased Assets and Held Collateral contained therein.
(n) Seller Parties shall have delivered to Buyer (i) each document or certificate that Section 3.05; 2.05 requires them to deliver, and (viii) any changes in applicable Laws such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (CompuCredit Holdings Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.1, Section 3.024.5, Section 3.03, Section 3.06 and Section 3.214.8, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.1, Section 3.024.5, Section 3.03, Section 3.06 and Section 3.21 shall 4.8shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Schedule 4.4 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect.
(f) Seller shall have delivered to Buyer executed copies of all documents and deliveries set forth in Section 3.2(a).
(g) Buyer shall have received a certificate of the extent Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such eventresolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(h) Buyer shall have received a certificate of the Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, occurrence, fact, condition or change has a disproportionate effect on Brio compared the Transaction Documents and the other documents to other participants in be delivered hereunder and thereunder.
(i) Buyer shall have received the industries in which Brio conducts its businessesCertificate of Approval.
Appears in 1 contract
Samples: Interest Purchase Agreement (WPCS International Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller contained in (i) Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto 3.03(a) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof that specified date), (ii) Sections 3.01, 3.02, 3.03(b), 3.04, 3.05, and on 3.19 shall be true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true and correct in all respects as of that specified date date), and (iii) in all respectsother Sections of ARTICLE III shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date). For purposes , except where the failure of this Agreement “such representations and warranties to be true and correct would not have a Company Material Adverse Effect” means .
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.
(c) all approvals, consents and waivers that are listed on Section 3.05 of the Company Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing, in form and substance reasonably satisfactory to Buyer;
(d) from the date of this Agreement, there shall not have occurred any eventCompany Material Adverse Effect, occurrence, fact, condition nor shall any event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Company Material Adverse Effect;
(e) The Seller shall have delivered to Buyer a duly executed FIRPTA certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the extent meaning of Section 1445 of the Code.
(f) Seller shall have duly executed and delivered, or caused to be delivered, the Assignment to Buyer.
(g) Xxxxx shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Sections 6.02(a), 6.02(b) and 6.02(d) have been satisfied.
(h) Xxxxx shall have received a certificate of the secretary or an assistant secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by such eventSeller authorizing the execution, occurrencedelivery and performance of this Agreement and the consummation of the transactions contemplated hereby, fact, condition and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby.
(i) Xxxxx shall have received duly executed resignations of the managers and officers of the Company to be effective as of the Closing.
(x) Xxxxx shall have received a certificate of the secretary or change has an assistant secretary (or equivalent officer) of the Seller certifying the names and signatures of the officers of such Seller authorized to sign this Agreement and the other documents to be delivered hereunder.
(k) Seller shall have delivered to Buyer a disproportionate effect on Brio compared to other participants in good standing certificate (or its equivalent) for the industries Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which Brio conducts its businessesthe Company is organized.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Envirotech Vehicles, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 and Section 3.214.04, the representations and warranties of Sellers Seller contained in this Agreement, Agreement and the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality materiality, in all material respects, or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality materiality, in all material respects, or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 and Section 3.21 4.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller and the Stockholders shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer (or Buyer shall have waived) duly executed counterparts to the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) All Encumbrances relating to the Purchased Assets shall have been released in full and Seller shall have delivered to Buyer written evidence, results in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(h) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(i) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by all of the equityholders and the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(j) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except pursuant the Transaction Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vik) any changes Seller shall have delivered to Buyer or a Person designated by Buyer an Advertising Fund Asset Purchase Agreement providing for nominal consideration to be paid for all of the advertising fund assets, and in applicable Laws a form mutually agreeable to the Parties, duly executed by RE/MAX of New Jersey Institutional Advertising, Inc.
(l) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.214.20, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.21 4.20 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers under the customer contracts that are listed as items 1 and 2 on Section 4.03 of the Disclosure Schedules as delivered on the date of this Agreement “shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(f) Seller shall not include any eventhave delivered to Buyer duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) All Encumbrances relating to the Purchased Assets shall have been released in full, occurrenceother than Permitted Encumbrances, factand Seller shall have delivered to Buyer written evidence, condition or changein form satisfactory to Buyer in its sole discretion, directly or indirectlyof the release of such Encumbrances.
(h) Buyer shall have received, arising out from each of or attributable to: the employees of the Business listed on Section 8.01(h) of the Disclosure Schedules, countersigned offers of employment by Buyer in the form of Exhibit E hereto (the “Offer Letters”).
(i) general economic Buyer shall have received approval from the applicable Trading Market to list the Buyer Shares in accordance herewith.
(j) Buyer shall have received from Mind Your Design LLC, a countersigned consulting agreement, in form and substance satisfactory to Buyer, for the purpose of transferring the ISM Pluto project intake system and associated domain name and additional actions in connection therewith.
(k) Buyer shall have received from Schensuntzu, LLC d/b/a The Station, a countersigned consulting agreement, in form and substance satisfactory to Buyer, for the purpose of providing video and marketing services to Buyer following the Closing.
(l) Seller shall have delivered to Buyer such other documents or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smith Micro Software, Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Closing and the other contemplated transactions contemplated by this Agreement shall be subject to the fulfillment satisfaction or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) All covenants contained in this Agreement to be complied with by Seller, the Company and Warrant Holders on or before the Closing shall have been complied with in all material respects.
(b) Other than the Fundamental Representations, each of the representations and warranties of Sellers concerning the Company contained in Section 3.01ARTICLE III, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, concerning the representations and warranties of Sellers Warrant Holders contained in this AgreementARTICLE IV, the Transaction Documents and any certificate or other writing delivered pursuant hereto concerning Seller in ARTICLE V hereof shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or the absence of a Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or the absence of a Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at on and as of such date the Closing Date (except for those representations and warranties that address matters only as of a specified particular date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 Fundamental Representations shall be true and correct in all respects on and as of the date hereof and on as of the Closing Date as though made on and as of the Closing Date with the same effect as though made at and as of such date (Date, except for those representations and warranties that address matters only as of a specified date, particular date (the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) Since the date of this Agreement “Agreement, there shall not have occurred a Material Adverse Effect” means Effect with respect to the Company, or any event, occurrencechange, fact, condition circumstance, condition, event or change that iseffect, or could combination of changes, facts, circumstances, conditions, events or effects, that individually or in the aggregate would reasonably be expected to become, individually or in have a Material Adverse Effect with respect to the aggregate, materially adverse to Company;
(ad) There shall not exist any material Liens on any of the business, results of operations, condition (financial or otherwise) or assets of Brio, or the Company.
(be) the ability of Sellers Buyer shall have obtained debt financing sufficient to consummate fund the transactions contemplated hereby on a timely basis; providedthe Closing Date, howeveron terms and conditions reasonably acceptable to Buyer.
(f) No Governmental Authority or court of competent jurisdiction shall have enacted, that “Material Adverse Effect” shall not include issued, promulgated, enforced or entered any eventstatute, occurrencerule, factregulation, condition injunction or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war other order (whether temporary, preliminary or not declared)permanent) which is in effect and has the effect of making the contemplated transactions or the Closing illegal or otherwise restraining or prohibiting consummation of such transactions.
(g) Seller, armed hostilities or terrorismWarrant Holders, Warrant Holder Representative and the Company shall have executed and delivered, or be prepared to execute and deliver, the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes documents and other items set forth in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesSections 8.01 and 8.02.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment delivery or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than As to each Seller:
(i) This Agreement, duly executed;
(ii) Any Ancillary Documents to which such Seller is a party, duly executed;
(iii) A certificate signed by the Seller, in a form reasonable acceptable to Buyer and dated as of the Closing Date, certifying that: (i) the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of ; and (ii) the Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement “and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date;
(iv) Executed counterparts of all approvals, consents and waivers that are listed on Section 3.01(d) of the Disclosure Schedules;
(v) The Closing Transaction Expenses Certificate delivered by Sellers Representative;
(vi) The number of Shares set forth opposite its respective name in Section 2.01 of the Disclosure Schedules, in the form of stock certificates duly endorsed in blank or accompanied by stock powers or other instruments of transfer reasonably satisfactory to Buyer, and free and clear of any Encumbrances;
(vii) A Certificate, in a form reasonably acceptable to Buyer, certifying that there has been no Material Adverse Effect” means any event, occurrence, fact, condition ;
(viii) Such other documents or change that is, or could instruments as Buyer reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers requests and are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement shall be are subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each satisfaction of the following additional conditions, any one or more of which may be waived (where permissible under applicable Law) in writing by Buyer:
(a) Other than the (i) The representations and warranties of Sellers contained Seller set forth in Section 3.014.1 (Organization of the Company), Section 3.024.2 (Subsidiaries), Section 3.034.3 (Organization of Seller; Due Authorization), Section 3.06 4.6 (Capitalization of the Company), Section 4.7 (Capitalization of Subsidiaries) and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto 4.16 (Brokers’ Fees) shall be true and correct in all but de minimis respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on of this Agreement and as of the Closing Date with the same effect Date, as though if made anew at and as of such date that time (except those with respect to representations and warranties that address matters only which speak as of a specified to an earlier date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all but de minimis respects on at and as of such date) and (ii) except as provided in (i), each of the representations and warranties of Seller contained in Article IV shall be true and correct (without giving effect to any limitation indicated by the words “Material Adverse Effect”, “in all material respects”, “material”, “materially” or other similar qualifiers) as of the date hereof and on of this Agreement and as of the Closing Date Date, as if made anew at and as of that time (except with the same effect respect to representations and warranties which speak as though made to an earlier date, which representations and warranties shall be true and correct at and as of such date (date), except those representations for any inaccuracy or omission that does not and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could would not reasonably be expected to becomehave, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred on the Company.
(b) The covenants of Seller to be performed at or could reasonably be expected to occur prior to the extent Closing shall have been performed in all material respects.
(c) Seller shall have delivered to Buyer a certificate signed by an officer of Seller, dated the Closing Date, certifying that such eventeach of the conditions specified in Sections 9.2(a) and 9.2(b) have been fulfilled.
(d) Since the date of this Agreement, occurrencethere shall not have been a Material Adverse Effect of the Company.
(e) Seller shall have made (or caused to be made) the deliveries set forth in Section 3.2.
(f) Seller shall have, factprior to December 31, condition or change has 2018, caused BoardEx to file with the U.S. Internal Revenue Service a disproportionate effect valid election under Treasury Regulation Section 301.7701-3(c) (on Brio compared Internal Revenue Service Form 8832) to other participants in the industries in which Brio conducts its businessestreat BoardEx as a disregarded entity for U.S. federal income tax purposes with an effective date that is before December 31, 2018.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Thestreet, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(ai) Other than the representations The Seller Fundamental Representations (except for Section 5.5(a) and warranties of Sellers contained Section 5.13(b), which are addressed in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto 8.2(a)(ii)) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at on and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in , (ii) Section 3.01, Section 3.02, Section 3.03, Section 3.06 5.5(a) and Section 3.21 5.13(b) shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at on and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all material respects). For purposes ) and (iii) each of the representations and warranties of Seller contained in Article V of this Agreement Agreement, other than the Seller Fundamental Representations, shall be true and correct in all respects (without giving effect to any materiality or “Material Adverse Effect” means qualifications therein) as of the date hereof and as of the Closing Date with the same effect as though made on and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date), except in each case under this clause (ii), where the failure of any event, occurrence, fact, condition or change that is, or could reasonably such representations and warranties to be expected to becomeso true and correct would not, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or have a Material Adverse Effect.
(b) Seller is able, as of the ability of Sellers Closing Date, to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war grant rights (whether pursuant to a license or not declared)a sublicense) to Buyer under the License Agreement without Buyer incurring any additional consideration, armed hostilities to the same extent that Seller would have been able, as of the date hereof, to grant rights to Buyer under the License Agreement.
(c) Seller shall have duly performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or terrorism, or complied with by it prior to the escalation or worsening thereof; Closing.
(vd) any action required or permitted by Since the date of this Agreement, except there shall have been no Material Adverse Effect that is continuing.
(e) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 8.2(a), Section 8.2(b) and Section 8.2(c) have been satisfied (the “Seller Closing Certificate”).
(f) Seller shall have made all the deliveries required to be made by Seller pursuant to Section 3.05; 4.2 (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion other than delivery of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesTransferred Assets).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Buyer is satisfied with the results of such Due Diligence, in Buyer’s sole and absolute discretion.
(b) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.22, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(c) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(d) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(e) All Consents listed on Section 4.03 of the Disclosure Schedules shall have been received and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(f) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ag) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(h) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(i) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(j) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(k) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(l) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(m) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(n) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate close the transactions contemplated by this Agreement shall be is subject to the fulfillment or the Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than No Governmental Authority has enacted, issued, promulgated, enforced, or entered any Governmental Order that is in effect and has the representations effect of making the transactions contemplated by this Agreement illegal, restraining or prohibiting the completion of such transactions, or causing any of such transactions to be rescinded following completion.
(b) All consents, authorizations, orders, and warranties of Sellers contained approvals from the Governmental Authorities and all other Persons referred to in Section 3.013.5 (including the Healthcare Licenses), Section 3.02in form and substance reasonably satisfactory to Buyer, Section 3.03have been obtained and delivered to Buyer, Section 3.06 and Section 3.21no such consent, the representations and warranties of Sellers contained in this Agreementauthorization, the Transaction Documents and order, or approval has been revoked or includes any certificate conditions or other writing delivered pursuant hereto shall be requirements.
(i) The Fundamental Representations are true and correct in all respects (in as of the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in Closing with the case of any representation or warranty not qualified by materiality or Material Adverse Effect) same effect as though made on and as of the date hereof Closing, and on (ii) the representations and warranties contained in Article 3 and Article 4 are true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date the Closing (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on as of that specified date).
(d) Seller has duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by it before or at the Closing.
(e) Buyer has received certificates of good standing for the Company from the Secretary of State of Delaware.
(f) The Company has entered into an employment agreement with Xxxx Xxxxx in a form that is reasonably satisfactory to Buyer.
(g) Buyer has received resignations from each of the Company’s officers and directors effective as of the date hereof and on and Closing.
(h) Buyer has received a non-foreign affidavit dated as of the Closing Date with from Seller in form and substance required under the same effect Treasury Regulations issued pursuant to Section 1445 of the Code stating that Seller is not a “foreign person,” as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: defined therein.
(i) general economic Buyer has received the certificates representing the Shares, endorsed in blank or political conditions; accompanied by duly executed assignment documents together with the original corporate record book of the Company updated to the Closing.
(j) Seller has provided Buyer with evidence of product liability insurance coverage it is required to obtain under Section 6.10.
(k) Seller has provided Buyer a secretary's certificate, dated as of the Closing Date, as to (i) resolutions adopted by the Board of Directors of the Company approving the Agreement and all other ancillary documents, (ii) conditions generally affecting the industries in which Brio operates; Articles, (iii) any changes in financial or securities markets in general; the Bylaws, (iv) acts of war (whether or not declared)Seller’s stock certificate, armed hostilities or terrorismeach as in effect at the Closing, or the escalation or worsening thereof; and (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion authority and incumbency of the transactions contemplated by officers of the Company executing this Agreement; provided further, however, that Agreement and any event, occurrence, fact, condition other documents required to be executed or change referred to delivered in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesconnection therewith.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall to be consummated at the Closing is subject to the fulfillment satisfaction (or waiver by Buyer’s waiver, at or prior to the Closing, of each ) of the following conditions:
(a) Other than (i) each of the representations and warranties Fundamental Representations of Sellers contained Seller set forth in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Article II shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on at and as of the Closing Date as if made as of the Closing Date (except with respect to representations and warranties that address matters only as of a particular date, in which case, as of such other date); and (ii) the same effect as though made other representations and warranties of Seller set forth in Article II shall be true and correct at and as of such date the Closing Date as if made as of the Closing Date (disregarding all qualifications and exceptions as to materiality or Business Material Adverse Effect contained therein), except (x) for changes contemplated or permitted by this Agreement or consented to by Buyer, (y) for those representations and warranties that address matters only as of a specified date, the accuracy of particular date (which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date date, subject to clause (except those z) below), and (z) for failures of the representations and warranties to be true and correct as to matters that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could would not reasonably be expected to become, individually result in a Business Material Adverse Effect;
(b) Seller shall have performed or complied in all material respects with the aggregate, materially adverse agreements and covenants required to be performed or complied with by it under this Agreement and the Related Agreements as of or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified in clauses (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or through (b) of this Section 5.1 is satisfied;
(d) all waiting periods (and any extensions thereof) under the ability of Sellers HSR Act applicable to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this AgreementAgreement shall have expired or otherwise been terminated;
(e) Seller shall have delivered to Buyer a certificate of non-foreign status in form and substance consistent with Treasury Regulations Section 1.1445-2(b)(2);
(f) no judgment, except pursuant to Section 3.05; (vi) order, decree, stipulation or injunction by any changes Governmental Entity shall be in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion effect which prevents consummation of any of the transactions contemplated by this Agreement; provided further, howeverand no action, that any event, occurrence, fact, condition suit or change referred to in clauses (i) through (iv) immediately above proceeding shall be taken into account in determining whether a Material Adverse Effect has occurred pending by or could before any Governmental Entity which would reasonably be expected to occur result in a judgment, order, decree, stipulation or injunction that would cause any of the transactions contemplated by this Agreement to be rescinded following consummation;
(g) Buyer shall have received all of the extent that such eventitems required to be delivered to it by Seller pursuant to Section 1.3(b);
(h) at least four (4) of the individuals set forth on Schedule 5.1(h) shall have accepted and not revoked or rescinded their acceptance of employment with Buyer or one of its Affiliates pursuant to employment offer letters entered into following the date of this Agreement, occurrenceother than on account of death or disability; and
(i) since the date of this Agreement, fact, condition or change has there shall not have occurred a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesBusiness Material Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Openwave Systems Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s written waiver, at or prior to the Closing, of each of the following conditions:
(a) Other (1) The representations and warranties of Affinity set forth in ARTICLE IV (other than the Affinity Fundamental Representations and the representations and warranties of Sellers contained Affinity set forth in Section 3.01, Section 3.02, Section 3.03, Section 3.06 4.13(h) (Employment and Benefits Matters) and Section 3.214.16 (Health Care Matters)), the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto hereto, disregarding any qualifications or limitations set forth in such representations or warranties as to materiality, Material Adverse Effect, or any other similar qualifier contained in such representations and warranties shall be true and correct in all respects (respects, in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and each case, as of the date hereof and on and as of the Closing Date with the same effect as though made at on and as of such date except: (except those representations and warranties i) to the extent that address matters only as of any such representation or warranty refers to a specified date, the accuracy of in which event such representation and warranty shall be determined true and correct as of that such specified date in all respects). The date; and (ii) where the failure of such representations and warranties of Sellers contained to be so true and correct, has not had, and would not reasonably be expected to have, individually or in Section 3.01the aggregate, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 a Material Adverse Effect; (2) the Affinity Fundamental Representations shall be true and correct in all respects on and but de minimis respects, in each case as of the date hereof and as of the Closing Date as though made on and as of such date except to the extent that any such representation or warranty refers to a specified date, in which event such representation and warranty shall be true and correct as of such specified date; and (3) the representations and warranties of Affinity set forth in Section 4.13(h) (Employment and Benefits Matters) and Section 4.16 (Health Care Matters), disregarding any qualifications or limitations set forth in such representations or warranties as to materiality, Material Adverse Effect, or any other similar qualifier contained in such representations and warranties shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date with the same effect as though made at on and as of such date (except those representations and warranties to the extent that address matters only as of any such representation or warranty refers to a specified date, the accuracy of in which event such representation and warranty shall be determined true and correct in all material respects as of that such specified date date.
(b) Affinity shall have duly performed and complied in all respects). For purposes of material respects with all agreements, covenants and conditions required by this Agreement “and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) From the date hereof, there shall not have occurred any Material Adverse Effect or Regulatory Material Adverse Effect” means , nor shall any eventevent(s), occurrenceoccurrence(s), factfact(s), condition condition(s), change(s) or change that is, or could reasonably be expected to becomeeffect(s) have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect or a Regulatory Material Adverse Effect.
(d) Affinity shall have delivered to Buyer duly executed counterparts to the extent Transaction Documents (other than this Agreement).
(e) Affinity shall have delivered to Buyer a duly executed affidavit prepared in accordance with Treasury Regulations Section 1.1445-2(b) certifying Affinity’s non-foreign status.
(f) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Affinity certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors of Affinity authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such eventresolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, occurrenceand (ii) the names and signatures of the officers of Affinity authorized to sign this Agreement, factthe Transaction Documents and the other documents to be delivered hereunder and thereunder.
(g) Buyer shall have received a certificate, condition or change has dated as of the Closing Date and signed by a disproportionate effect on Brio compared duly authorized officer of Affinity, that each of the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(c) have been satisfied.
(h) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Affinity as of the Closing Date.
(i) Buyer shall have received all consents, approvals and authorizations that are set forth in Exhibit E (collectively, the “Required Third Party Consents”).
(j) Affinity shall have delivered to Buyer the Estimated Closing Statement, which in Buyer’s reasonable judgment complies with this Agreement and is accurate in all material respects.
(k) Sufficient Provider Contracts shall have been successfully assigned to Buyer to enable Buyer to satisfy the Minimum Network Requirements.
(l) Buyer shall have received duly executed copies of the FQHC Non-Compete Agreements, which are valid and in full force and effect.
(m) Affinity shall have received approval for this Agreement, the other participants in Transaction Documents and the industries in which Brio conducts its businessestransactions contemplated hereby and thereby from the requisite number of FQHC Members pursuant to Section 510(a)-1 of the New York Not-for-Profit Corporation Law and shall have delivered to Buyer a certificate, dated as of the Closing Date and duly executed by the requisite number of FQHC Members (pursuant to Section 510(a)-1 of the New York Not-for-Profit Corporation Law), approving the execution and delivery by Affinity of this Agreement, the other Transaction Documents and the performance and consummation by Affinity of the transactions contemplated hereby and thereby.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement Closing shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21Seller Fundamental Representations, the representations and warranties of Sellers the Seller Parties contained in this AgreementAgreement shall be true and correct (without giving effect to any materiality qualifiers, including “Material Adverse Effect” contained therein) as of the Transaction Documents date hereof and as of the Closing Date as though made as of such date (except to the extent that any certificate such representation or other writing delivered pursuant hereto warranty is made as of a specific date, in which case such representation and warranty shall be true and correct as of such specific date), except where the failure of any such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Seller Fundamental Representations shall be true and correct in all but de minimis respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties to the extent that address matters only any such representation or warranty is made as of a specified specific date, the accuracy of in which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 case such representation or warranty shall be true and correct as of such specific date).
(b) The Seller Parties, the Company and Holding Sub shall have performed and complied in all material respects with all covenants, agreements and obligations required to be performed or complied with by each Seller Party, the Company or Holding Sub under this Agreement on or prior to the Closing.
(c) Since the date of this Agreement, there shall not have occurred and as be continuing any Material Adverse Effect.
(d) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of each of the date hereof Seller Parties, that each of the conditions set forth in Section 8.02(a), Section 8.02(b) and Section 8.02(c) have been satisfied.
(e) Each of the Continuing Service Providers set forth on Schedule A hereto shall have executed and delivered a Continuing Service Provider Agreement, which shall be in full force and effect as of the Closing Date with Date, except in the same effect as though made at and as event of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition Continuing Service Provider’s death or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessespermanent disability.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Eagle Outfitters Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.03 and Section 3.214.15, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.03(a) and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are necessary to the consummation of the transactions contemplated hereunder have been received by Xxxxx or Seller as applicable, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(x) Xxxxx shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Xxxxx shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vil) any changes in applicable Laws Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further.
(m) Buyer shall have obtained financing sufficient to complete the transactions contemplated hereby, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants as determined in the industries in which Brio conducts its businessessole discretion of Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than Buyer shall have completed its due diligence investigation of the Companies and the Business, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation;
(b) The representations and warranties of the Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Companies contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date the Closing Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). ;
(c) The representations Sellers and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 the Companies shall have duly performed and Section 3.21 shall be true and correct complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date;
(d) No Action shall have been commenced against Buyer, Parent, the Sellers or the Companies, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and as of the date hereof and on and as of be in effect, which restrains or prohibits any transaction contemplated hereby;
(e) Buyer shall have received a certificate, dated the Closing Date with the same effect as though made at and as signed by a duly authorized officer of such date (except those representations each Company and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, howeverSellers’ Agent, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion each of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to conditions set forth in clauses (iSection 8.02(b) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.and 8.02
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.03 and Section 3.213.13, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.03 and Section 3.21 3.13 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or .
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the ability other Transaction Documents to be performed or complied with by Seller prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, Seller or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are required to be obtained by or on behalf of Sellers to consummate Seller in connection with the transactions contemplated hereby on by this Agreement shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) Seller shall have duly executed and delivered the Assignment to Buyer.
(f) The other Transaction Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received a timely basiscertificate, dated the Closing Date and signed by Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(h) Buyer shall have received resignations of the managers and officers of the Company pursuant to Section 5.04.
(i) Seller shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the Secretary of State of the Commonwealth of Massachusetts.
(j) Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code.
(k) Buyer shall be satisfied in its discretion with any Updated Phase I ESA and/or Updated Title Report obtained by Buyer pursuant to Section 5.02, as applicable; provided, however, that “Material Adverse Effect” Buyer shall not include any eventbe deemed to be so satisfied unless, occurrenceprior to the date that seven (7) days following the date that Buyer receives such Updated Phase I ESA or such Updated Title Report, factas applicable, condition Buyer has provided written notice to Seller of its dissatisfaction with the applicable report.
(l) Seller shall have delivered to Buyer such other documents or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (4Front Ventures Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Company and Key Sellers, as applicable, contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.06, Section 3.10, Section 3.19, Section 3.25, Section 3.26, Section 4.01, Section 4.02, Section 4.03, Section 4.04, and Section 3.214.06 (collectively, the “Sellers’ Fundamental Representations”), of the representations and warranties of the Company and Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Company and Sellers, as applicable, contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 the Sellers’ Fundamental Representations shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, any Seller or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 8.02(d) of the Disclosure Schedule shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) Buyer shall have completed its limited due diligence investigation relating to the Company’s customers, and shall, in its sole discretion, be satisfied with the results of that limited due diligence investigation.
(f) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect.
(ag) The Ancillary Documents shall have been executed and delivered by the businessparties thereto (other than the Buyer) and true and complete copies thereof shall have been delivered to Buyer.
(h) Buyer shall have completed its GAAS/PCAOB audits.
(i) Buyer shall have successfully completed its Financing.
(j) No legal restrictions exist that will prevent Buyer from issuing Buyer Common Stock to the Rollover Sellers as Stock Consideration as contemplated by this Agreement.
(k) Buyer shall have received resignations of the directors and officers of the Company pursuant to Section 6.05.
(l) At least three (3) Business Days before Closing, results Sellers and the Company shall have delivered to Buyer the Closing Certificate contemplated in Section 2.04(a).
(m) The Company shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the Commonwealth of operationsVirginia Corporation Commission.
(n) Each Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller is not a foreign person within the meaning of Section 1445 of the Code.
(o) Each Seller shall have delivered, condition or caused to be delivered, to Buyer stock certificates and original Warrant instruments evidencing such Seller’s Shares and Warrants, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed (financial or otherwiseor, if any Seller determines that any of its certificate(s) or assets instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate or instrument affidavit and agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of Briothe certificate(s) or instrument(s)).
(p) Buyer shall have received a certificate, dated the Closing Date and signed by the Key Sellers that each of the conditions set forth in Section 8.02(a) and Section 8.02(b) have been satisfied.
(q) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (bor equivalent officer) of the ability Company certifying that attached thereto are true and complete copies of Sellers all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and any Ancillary Documents to consummate which the Company is a party and the consummation of the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(r) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts Company certifying the names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of the Company authorized to sign this Agreement, except pursuant any Ancillary Documents to which the Company is a party and the other documents to be delivered hereunder and thereunder to which the Company is a party.
(s) The Company’s Board of Directors (or any committee thereof) shall have adopted all required resolutions and taken all actions that are necessary to effectuate the provisions of Section 3.05; 2.08(a).
(vit) any changes in applicable Laws Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred .
(u) The Sellers shall arrange for delivery of an electronic copy of the virtual data room created and maintained by Ansarada (on behalf of the Company) to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to Buyer as such data room existed on the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesdate of this Agreement.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers and the Principals contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.21, the representations and warranties of Sellers and the Principals contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers and the Principals contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers and the Principals shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, Sellers or the Principals, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All required approvals of Buyer's lenders and approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules (including, without limitation, a copy of the resolutions of the managers and members of KHM and of the general partner and all limited partners of Lone Star, in each case, approving this Agreement, the Transaction Documents and the sale by KHM and Lone Star of the Purchased Assets) shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) All consents required to assign to Buyer all of the Customer Contracts shall have been received by Buyer and such consents shall be satisfactory to Buyer in its sole satisfaction.
(f) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(g) Sellers and the Principals shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(h) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Sellers as of the Closing Date.
(i) All Encumbrances relating to the Purchased Assets shall have been released in full or will be released in full upon payment of such Encumbrances at Closing pursuant to the payment made at Closing under Section 2.06 (a), other than Permitted Encumbrances, and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(j) Buyer shall have received the businessexecuted Sellers' Closing Certificate, results dated the Closing Date and signed by a duly authorized officer of operationsSellers, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(financial k) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of Brio, or (b) the ability of Sellers to consummate certifying that attached thereto are true and complete copies of all resolutions adopted by the manager of KHM and the general partner of Lone Star authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(l) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Sellers certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Sellers authorized to sign this Agreement, except the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(m) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe "FIRPTA Certificate") that each Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Sellers.
(n) Buyer and its representatives have conducted a due diligence review of Sellers and the Books and Records, Financial Statements, other document, records, accounts and agreements of Sellers, and Buyer shall be satisfied in its sole discretion with such due diligence review. Such review shall have no effect whatsoever on the liability of Sellers or the Principals or Buyer under this Agreement or otherwise for breach of any changes representations, warranties, or covenants of such parties.
(o) The board of directors of Buyer shall have approved this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, which approval shall be in applicable Laws the sole discretion of the board of directors of Buyer.
(p) Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition .
(q) All schedules delivered by Sellers and the Principals prior to and as of the Closing shall have been accepted and approved by Buyer in its sole discretion.
(r) Buyer shall have received funding in the form of debt or change referred other financing subject to terms and conditions acceptable to Buyer in clauses its sole discretion which provide financing for the payment of the Purchase Price.
(s) As of the Closing (i) through all improvements and repairs at the Leased Real Property pending upon the execution and delivery of this Agreement shall have been completed, (ivii) immediately above the Leased Real Property shall be taken into account in determining whether a Material Adverse Effect has occurred fully operational with no pending repairs or could reasonably be expected to occur to maintenance, normal wear and tear excepted and (iii) the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in Kenedy Premises and the industries in which Brio conducts its businessesXxxxxx Premises shall have substantially similar capabilities and functions.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate purchase of the transactions Purchased Assets contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at on or prior to the Closing, of each Closing Date of the following additional conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof when made and on and as of the Closing Date with the same effect as though if such representations and warranties had been made at on and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy and Buyer shall have received a certificate of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same Seller to such effect as though made at and as of such date (except those representations and warranties that address matters only as of signed by a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or duly authorized officer thereof;
(b) each covenant and obligation that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the ability Closing shall have been duly performed and complied with in all material respects, and Buyer shall have received a certificate of Sellers Seller to consummate such effect signed by a duly authorized manager or member thereof;
(c) Seller shall have the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out requisite authority to assign the Intellectual Property set forth in Schedule 2.1(c) to Buyer;
(d) each of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action deliveries required or permitted by this Agreement, except to be made to Buyer pursuant to Section 3.053.6 shall have been so delivered; and
(vi) any changes in applicable Laws or accounting rules, including GAAP; or (viie) the public announcement, pendency or completion of the transactions contemplated Sale Order shall have been entered and shall have become a Final Order and shall be in form and substance satisfactory to Buyer in its sole reasonable discretion. Any condition specified in this Section 8.2 may be waived by this AgreementBuyer; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above no such waiver shall be taken into account effective against Buyer unless it is set forth in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesseswriting executed by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (International Fight League, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers and SBE Holdco contained in Section 3.012.01, Section 3.022.02, Section 3.032.03, Section 3.06 2.06 and Section 3.212.25 (collectively, the “Seller Fundamental Representations”), the representations and warranties of Sellers and SBE Holdco contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 Seller Fundamental Representations shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Company, SBE Holdco, and Sellers will have performed, in all material respects, all of the covenants and agreements under this Agreement that are required to be performed by them at or prior to the Closing for completion of the Reorganization.
(c) Sellers and SBE Holdco shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers and SBE Holdco shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(d) No Action shall have been commenced against Buyer, Sellers, SBE Holdco, or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(e) All approvals, consents and waivers that are listed on Section 2.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(f) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect.
(g) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(h) Buyer shall have received resignations of the directors and officers of the Company pursuant to Section 4.05.
(i) Sellers shall have delivered to Buyer the Estimated Closing Statement contemplated in Section 1.04(a)(i).
(j) Sellers shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(k) Sellers and SBE Holdco shall each have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that each Seller and SBE Holdco is not a foreign person within the meaning of Section 1445 of the Code.
(l) SBE Holdco will have delivered to Buyer a duly executed assignment of the Units in a form reasonably acceptable to Buyer.
(m) Buyer shall have received a certificate, dated the Closing Date and signed by each of the Sellers and SBE Holdco, that each of the conditions set forth in Section 6.02(a) – (c) and Section 6.02(f) have been satisfied, to which are attached copies of (i) the resolutions of the board of directors of SBE Holdco and Sellers, as the sole shareholders of SBE Holdco, authorizing the sale by SBE Holdco of the Units, (ii) the resolutions of the sole member and the manager(s) of the Company approving this Agreement and the transactions contemplated herein, (iii) the organizational documents of each of the Company and SBE Holdco, (iv) certificates of good standing issued by the Secretary of State of the State of Florida as of a recent date for each of the Company and SBE Holdco, and (v) all of the documents comprising the Reorganization (the “Reorganization Documents”), including a certificate of the Conversion issued by the Secretary of State of the State of Florida and the cancelled stock certificates in the names of Sellers, evidencing their prior ownership of the Shares, as applicable, in each case certified as accurate and complete as of the Closing Date.
(n) The Public Merger shall either (i) have closed, or (ii) had all conditions to the extent that such event, occurrence, fact, condition closing thereof satisfied or change has a disproportionate effect on Brio compared to other participants in waived by the industries in which Brio conducts its businessesparties thereto.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the Closing and the transactions contemplated by this Agreement shall be the Additional Agreements are subject to the fulfillment satisfaction, or the waiver at Buyer’s waiver, at or prior to the Closingsole and absolute discretion, of each of all the following further conditions:
(a) Other than The Company shall have duly performed all of its obligations hereunder required to be performed by it at or prior to the Closing Date in all material respects (disregarding all references to “material respects” that may already be contained in the applicable covenants).
(b) (i) All of the representations and warranties of Sellers the Company in ARTICLE III (other than Company Fundamental Representations), in each case disregarding all qualifications and exceptions contained in Section 3.01herein relating to materiality or Company Material Adverse Effect, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on at and as of the Closing Date with except as provided in the same effect Disclosure Schedules (except that if the representation and warranties speak as though made at of a specific date prior to the Closing Date, such representations and warranties need only to be true and correct as of such date earlier date), except as would not in the aggregate reasonably be expected to have a Company Material Adverse Effect; and (except those representations ii) all Company Fundamental Representations, in each case disregarding all qualifications and warranties that address matters only as of a specified dateexceptions contained herein relating to materiality or Company Material Adverse Effect, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with in all material respects (except that if the same effect representation and warrants speak as though made at of a specific date prior to the Closing Date, such representations and warranties need only to be true and correct as of such earlier date).
(c) Since the date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Agreement, there shall have been no Company Material Adverse Effect” means any event, occurrence, fact, condition Effect which is continuing and uncured.
(d) The consummation of the Bond Financing shall have occurred.
(e) Buyer shall have received a certificate dated the Closing Date and signed by the Chief Executive Officer or change Chief Financial Officer of the Company certifying to the effect that is, or could reasonably be expected to become, individually or the conditions set forth in the aggregate, materially adverse to clauses (a) through (d) of this Section 6.2 have been satisfied.
(f) Buyer shall have received duly executed counterparts from the businessCompany and the Existing Equityholders, results of operationsas applicable, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesAdditional Agreements.
Appears in 1 contract
Samples: Equity Purchase Agreement (Yellowstone Acquisition Co)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver(or, with respect to any obligation other than Bankruptcy Court approval of the Sale Scheduling and Procedures Order and Sale Order, waiver thereof by Seller in writing), at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.214.21(a), the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.21(a) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except pursuant the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have received a certificate dated as of the Closing Date, sworn under penalties of perjury and in the form and substance required under Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(m) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05 and Section 3.213.25, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects (in without giving effect to any limitation indicated by the case of any representation or warranty qualified by materiality or words “Material Adverse Effect) or ,” “in all material respects (respects,” “in the case of any representation material respect,” “material,” or warranty not qualified by materiality or Material Adverse Effect“materially”) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.04, Section 3.05 and Section 3.21 3.25 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, Seller or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All consents, authorizations, orders, approvals, or waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, in each case, in form and substance reasonably satisfactory to Buyer, and no such consent, authorization, order, approval or waiver shall have been revoked, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) The MPUC Order shall have been received, copies of the MPUC Order shall have been delivered to Buyer at or prior to the Closing, the MPUC Order shall not have been revoked, reversed, stayed, enjoined, set aside, annulled or suspended, the MPUC Order shall be final and non-appealable, any waiting period prescribed by the MPUC Order or by law with respect to the MPUC Order shall have expired, and any conditions prescribed by the MPUC Order or by law with respect to the MPUC Order shall have been satisfied.
(f) From the date of this Agreement “Material Adverse Effect” means Agreement, there shall not have occurred any event, occurrence, fact, condition or change in Law that is, or could reasonably be expected to becomeadversely impact use or growth in use of natural gas in the Territory.
(g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ah) The Ancillary Documents shall have been executed and delivered by the businessparties thereto and true and complete copies thereof shall have been delivered to Buyer.
(i) Xxxxx shall have received resignations of the directors and officers of the Company pursuant to Section 5.05.
(j) At least five Business Days before Closing, results Seller shall have delivered to Buyer the Estimated Closing Statement and the Closing Transaction Expenses Certificate, including all related documentation described in Section 2.04(a)(ii).
(k) As of operationsthe Closing, condition Seller shall have delivered to Buyer the Closing Indebtedness Certificate, which shall reflect that the Company has no Indebtedness as of the Closing.
(financial l) Seller shall have delivered to Buyer the Estimated Closing Statement contemplated in Section 2.04(a)(ii).
(m) Seller shall have delivered to Buyer a good standing certificate (or otherwiseits equivalent) for the Company from the secretary of state or assets similar Governmental Authority of Briothe jurisdiction under the Laws in which the Company is organized.
(n) Seller shall have delivered to Buyer a valid and complete IRS Form W-9 for Seller and Buyer and, if required, a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code.
(o) Seller shall have delivered to Buyer a valid and complete, executed IRS Form 8023 (or successor form) as contemplated in Section 6.05(b).
(p) Seller shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed.
(bq) Buyer shall have received a certificate, dated the ability Closing Date and signed by a duly authorized officer of Sellers Seller, that each of the conditions set forth in Section 7.02(a), Section 7.02(b), Section 7.02(c) (with respect to consummate Seller and the Company only) and, to Seller’s Knowledge, Section 7.02(g) have been satisfied.
(r) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents to which it is a party and the consummation of the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(s) Xxxxx shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vit) any changes in applicable Laws Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date date.
(except those representations b) Each Seller Party shall have duly performed and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date complied in all respects). The representations material respects with all agreements, covenants and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 conditions required by this Agreement and Section 3.21 shall be true and correct in all respects on and as each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date with Date.
(c) All approvals, consents, waivers and Permits that are listed on Schedule 6.1(c) shall have been received.
(d) From the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect.
(e) Seller shall have delivered to Buyer duly executed counterparts to the extent Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.2(a).
(f) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants each of the conditions set forth in the industries in which Brio conducts its businessesSection 6.1(a) and Section 6.1(b) have been satisfied.
Appears in 1 contract
Samples: Asset Purchase and Reorganization Agreement (Guardion Health Sciences, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21the Seller Fundamental Representations, the representations and warranties of Sellers the Company and Seller contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes , except where the failure of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition such representations or change that is, or could reasonably warranties to be expected to becometrue and correct would not, individually or in the aggregate, materially adverse have an ACFP Material Adverse Effect (in each case, without giving effect to (a) the business, results of operations, condition (financial any qualifications as to “material” or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “ACFP Material Adverse Effect” contained in such representations and warranties). The representations and warranties of Seller contained in the Seller Fundamental Representations shall not include any eventbe, occurrenceexcept for de minimis inaccuracies, facttrue and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, condition the accuracy of which shall be determined as of that specified date in all respects).
(b) The Company and Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and Transaction Documents to be performed or changecomplied with by it prior to or on the Closing Date; provided, directly that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company and Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects; and further, provided, that, Seller and the Company shall have complied with Section 2.03(b) in all respects.
(c) All approvals, consents and waivers that are listed on Section 7.02(c) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or indirectly, arising out prior to the Closing.
(d) From the date of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) there shall not have occurred any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a ACFP Material Adverse Effect has Effect, nor shall any event or events have occurred that, individually or could in the aggregate, with or without the lapse of time, would reasonably be expected to occur to result in an ACFP Material Adverse Effect.
(e) Buyer shall have received a certificate, dated the extent Closing Date and signed by a duly authorized officer of Seller and the Company, that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants each of the conditions set forth in the industries in which Brio conducts its businessesthis Section 7.02 have been satisfied.
Appears in 1 contract
Samples: Stock Purchase Agreement (BurgerFi International, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.015.1, Section 3.025.2, Section 3.035.4, Section 3.06 and Section 3.215.20, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Documents other transaction documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes The representations and warranties of Seller contained in Section 5.1, Section 5.2, Section 5.4, and Section 5.20 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all respects with all agreements, covenants and conditions required by this Agreement and each of the other transaction documents to be performed or complied with by it prior to or on the Closing Date.
(c) No action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents, waivers, regulatory approvals, resolution of any outstanding regulatory activities, and third party consents (including consent to transfer of material agreements) on terms satisfactory to Buyer, shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Material Adverse Effect” means any eventAgreement, occurrence, fact, condition or there being no material adverse change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the businessBusiness, results of operations, prospects, condition (financial or otherwise) or assets Purchased Assets of Briothe Business prior to Closing.
(f) Buyer shall have completed its due diligence process, or to its sole and absolute satisfaction and in its discretion, including but not limited to diligence regarding the Intellectual Property of the Business, customer Contracts, supplier Contracts, and software/IT infrastructure.
(bg) the ability Board of Sellers Directors of Buyer shall have approved the transaction contemplated herein.
(h) Buyer shall have received financing in an aggregate amount reasonably necessary to consummate the transactions contemplated hereby set forth in this Agreement, on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: such terms and conditions as Buyer deems appropriate and reasonable in its discretion.
(i) general economic Seller shall have delivered to Buyer duly executed counterparts to the transaction documents (including this Agreement) and such other documents and deliveries set forth in Section 4.2.
(j) All Encumbrances relating to the Purchased Assets, shall have been released in full, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(k) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 9.2(a) – Section 9.2(e) have been satisfied (the “Seller Closing Certificate”).
(l) Buyer shall have received a certificate of the Secretary (or political conditionsequivalent officer) of Seller certifying that (i) attached thereto are true and complete copies of (x) Seller’s articles of incorporation and code of regulations and that all such governing documents are in full force and effect, (y) all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the other transaction documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, and (z) a certificate of good standing from the Michigan Department of Licensing and Regulatory Affairs; and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except the transaction documents and the other documents to be delivered hereunder and thereunder (the “Seller Secretary Certificate”).
(m) Buyer shall have received a certificate pursuant to Treasury Regulations Section 3.05; 1.1445-2(b) (vithe “FIRPTA Certificate”) any changes in applicable Laws that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.
(n) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of the Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 the Seller and Section 3.21, the representations and warranties of Sellers Company contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto (other than the Fundamental Representations of the Seller and the Company) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the {N0221423 } 62 case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof of this Agreement and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations Fundamental Representations of the Seller and warranties of Sellers the Company contained in Section 3.01this Agreement, Section 3.02, Section 3.03, Section 3.06 the other Transaction Documents and Section 3.21 any certificate or other writing delivered pursuant hereto shall be true and correct in all respects on and as of the date hereof of this Agreement and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes The Buyer shall have received from each of the Seller and the Company a certificate to that effect dated the Closing Date and signed by the Seller and the Company, as applicable.
(b) Each of the Seller and the Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement “Material Adverse Effect” means and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Seller or the Company, as applicable, shall have performed such agreements, covenants and conditions, as so qualified, in all respects. The Buyer shall have received from each of the Seller and the Company a certificate to that effect dated the Closing Date and signed by the Seller and the Company, as applicable.
(c) No Action shall have been commenced against any eventParty, occurrence, fact, condition or change that is, or could which would reasonably be expected to becomeprevent or delay the Closing or any transaction contemplated hereby and no Governmental Entity shall have threatened to commence any such action.
(d) From the date of this Agreement, there shall not have occurred any change, circumstance, development, state of facts, condition, occurrence, event or effect, that has had, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” , nor shall not include any eventchange, circumstance, development, state of facts, condition, occurrence, factevent or effect have occurred that, condition individually or changein the aggregate, directly with or indirectlywithout the lapse of time, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could would reasonably be expected to occur result in, individually or in the aggregate, a Material Adverse Effect. The Buyer shall have received from the Company a certificate to that effect dated the Closing Date and signed by the Company.
(e) The Seller shall have delivered to Buyer duly executed counterparts to the extent that Transaction Documents (other than this Agreement) and such eventother documents and deliveries set forth herein, occurrence, fact, condition or change has a disproportionate including pursuant to Section 3.2(a).
(f) The binder for the RWI Policy shall be in full force and effect on Brio compared and there shall be no subjectives to the issuance of the RWI Policy remaining unsatisfied other participants than the payment of premium by Buyer and such other administrative subjectives as set forth in the industries in which Brio conducts its businessessuch binder.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer and Advance America to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.23 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). Other than the representations and warranties of Seller Parties contained in Section 3.01, Section 3.02, and Section 3.23, the representations and warranties of Sellers Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Sellers shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants, and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by them prior to or on and as of the Closing Date Date.
(c) No Action shall have been commenced by any Governmental Authority against Advance America, Buyer, Sellers, or Parent, (i) involving any challenge to or seeking any material relief (monetary or otherwise) in connection with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of transactions contemplated by this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that isAgreement, or could (ii) that would reasonably be expected to becomehave the effect of preventing, delaying, making illegal, imposing material limitations or conditions on, or otherwise materially interfering with or making materially more costly any of the transactions contemplated by this Agreement.
(d) All approvals, consents, and waivers that are listed on Schedule 7.02(d) (which shall exclude all leases for the Locations) shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) For each Necessary Permit listed on Schedule 3.18(b), at the sole discretion of Buyer (subject to applicable Law), either (i) Buyer shall have obtained a corresponding new Permit from the applicable issuing Governmental Authority, or (ii) the applicable Seller shall have transferred such Permit to Buyer.
(f) Sellers shall have delivered to Buyer evidence, in form and substance reasonably acceptable to Buyer, of the release of any Encumbrances (other than Permitted Encumbrances) on the Purchased Assets.
(g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(h) The Transaction Documents (other than this Agreement) shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(i) general economic or political conditions; Buyer shall have received a certificate, in substantially the form attached hereto as Exhibit A, dated the Closing Date and signed by Parent, certifying (i) that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial names and signatures of the officers or securities markets in general; (iv) acts managers of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by each Seller Party authorized to sign this Agreement, except pursuant the Transaction Documents, and the other documents to be delivered hereunder and thereunder.
(j) Each Seller shall have delivered to Buyer a duly executed counterpart to a xxxx of sale, assignment, and assumption agreement, in substantially the form attached hereto as Exhibit C, with respect to the Purchased Assets and the Assumed Liabilities of such Seller.
(k) Each Seller shall have delivered to Buyer a duly executed counterpart to an assignment and assumption of Assumed Contracts, in substantially the form attached hereto as Exhibit D, with respect to the Assumed Contracts of such Seller.
(l) The appropriate Seller Parties shall have delivered to Buyer a duly executed counterpart to a domain name assignment, in substantially the form attached hereto as Exhibit E.
(m) The appropriate Seller Parties shall have delivered to Buyer a duly executed counterpart to a trademark assignment agreement, in substantially the form attached hereto as Exhibit F.
(n) Sellers shall have delivered possession of all of the Purchased Assets and all of the Held Collateral to Buyer, which delivery may be effected by turning over control of the Locations for all of the Purchased Assets and Held Collateral contained therein.
(o) Seller Parties shall have delivered to Buyer (i) each document or certificate that Section 3.05; 2.05 requires them to deliver, and (viii) any changes in applicable Laws such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Advance America, Cash Advance Centers, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.214.17, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.21 4.17 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date date.
(except those representations b) Seller shall have duly performed and warranties complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that address matters only are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects).
(c) Buyer shall have completed its due diligence of the Business to the reasonable satisfaction of Buyer;
(d) Buyer shall have completed its quality of earnings review of the Reviewed Financial Statements.
(e) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(f) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(g) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ah) Seller shall have delivered to Buyer duly executed counterparts to the businessTransaction Documents and such other documents and deliveries set forth in Section 3.02(a).
(i) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(j) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(k) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the "Seller Closing Certificate").
(l) Buyer shall have received a certificate of the Manager (or otherwiseequivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of managers of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability other Transaction Documents and the consummation of Sellers to consummate the transactions contemplated hereby on a timely basis; providedand thereby, however, and that “Material Adverse Effect” all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(m) Seller shall not include any event, occurrence, fact, condition have delivered to Buyer such other documents or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Documents other transaction documents, and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effectmaterial adverse effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectmaterial adverse effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other transaction documents to be performed or complied with by it prior to or on and as of the Closing Date with Date.
(c) No Action shall have been commenced against Buyer, Seller, or the same effect as though made Company which would prevent the Closing. No injunction or restraining order shall have been issued by any governmental authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at and as of such or prior to the Closing.
(e) From the date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means Agreement, there shall not have occurred any eventmaterial adverse effect, occurrence, fact, condition nor shall any event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially with or without the lapse of time, could reasonably be expected to result in a material adverse effect.
(f) Seller shall have delivered to Buyer an executed certificate of the Secretary (aor other executive officer) of the Company certifying: (A) that the Company’s organizational documents (which are to be attached to the certificate) are true and correct as of immediately prior to the Closing, and (B) certificates of good standing showing that the Company is duly formed and in good standing and has a legal existence in the state of its formation and in each of the states where the Company is qualified to do business.
(g) Buyer shall have received a certificate, dated the Closing Date and signed by Seller, that each of the conditions set forth in Section 7.01(a) and Section 7.01(b) have been satisfied.
(h) Seller shall have delivered to Buyer executed Stock Powers or similar instruments of assignment and conveyance, transferring the Shares in form and substance reasonably satisfactory to the Buyer.
(i) Seller shall have delivered certifications duly executed by Seller in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv)(A) or otherwise reasonably satisfactory to the Buyer.
(j) Seller shall have delivered to Buyer the books and records of the Company.
(k) Seller shall have delivered to Buyer the Employment Agreement in substantially the form attached hereto as Exhibit B, duly executed by Vxxxx.
(l) Buyer shall have completed and shall be satisfied, in its sole and absolute discretion, with the results of operations, condition its diligence investigation of the Company including confirmation of the historical financial results and financial projections and financial statements of the Company.
(financial or otherwisem) or assets of Brio, or (b) Buyer shall have received acquisition financing for the ability of Sellers transactions contemplated by this Agreement that are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this AgreementAgreement in the discretion of the Buyer.
(n) Seller shall have properly notified the Florida DEP regarding the change in ownership of Agricycle with respect to its permit, except pursuant and acceptance of this notification is received by the Company.
(o) Seller shall have delivered to Section 3.05; (vi) any changes in applicable Laws Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.01Sections 3.1, Section 3.023.2, Section 3.03, Section 3.06 3.4 and Section 3.213.23, the representations and warranties of Sellers Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01Sections 3.1, Section 3.023.2, Section 3.03, Section 3.06 3.4 and Section 3.21 3.23 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.3 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Seller shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 2.2(a).
(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of operationsthe release of such Encumbrances.
(i) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied (financial the “Seller Closing Certificate”).
(j) Xxxxx shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of BrioSeller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, or (b) delivery and performance of this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Bxxxx shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Seller authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(vil) any changes in applicable Laws Buyer shall have received a properly completed and duly executed IRS Form W-9 with respect to Seller.
(m) Seller shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further.
(n) The Stockholder Approval delivered by Seller to Buyer on the date hereof shall not have been altered, howevermodified, that any event, occurrence, fact, condition changed or change referred to in clauses (i) through (iv) immediately above revoked and shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesfull force and effect.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.214.22, the representations and warranties of Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.014.01, Section 3.02, Section 3.03, Section 3.06 4.02 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of .
(b) Each Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement “Material Adverse Effect” means and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or any eventSeller Party, occurrence, fact, condition or change that is, or could which would reasonably be expected to becomeprevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed in Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect.
(af) The Seller Parties shall have delivered to Buyer duly executed counterparts to the businessAncillary Documents and such other documents and deliveries set forth in Section 3.02(a).
(g) Buyer shall have received all material Permits that are necessary for it to conduct the Business as conducted by Sellers as of the Closing Date.
(h) Buyer shall have received a title commitment and pro forma owner’s title insurance policy with respect to each parcel of Owned Real Property, results issued by a nationally recognized title insurance company acceptable to Buyer (the “Title Company”), insuring Buyer in such amounts and together with such endorsements, and otherwise in such form, as Buyer shall reasonably require. Such title insurance policy (the “Title Policy”) shall insure fee simple title to each Owned Real Property, free and clear of operationsall Encumbrances other than Permitted Encumbrances and those listed on Section 4.10(a)(i) of the Disclosure Schedules. The costs and expenses incurred in connection with the Title Policy shall be shared equally by Sellers, condition on the one hand, and Buyer, on the other hand; provided that the costs directly associated with any specific endorsements therein that are requested by the Buyer shall be borne by the Buyer.
(financial i) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and each Seller shall have delivered to Buyer written evidence, in form reasonably satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(j) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Parent, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(k) Buyer shall have received a certificate of the manager or otherwisemanaging member of (or duly elected officer) of each Seller and Parent certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the board of managers or assets members thereof authorizing the execution, delivery and performance of Brio, or (b) this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on a timely basisand thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; and (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by persons authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder on behalf of each Seller and Parent.
(l) Buyer shall have received a certificate from Parent pursuant to Treasury Regulations Section 3.05; (vi1.1445-2(b) any changes in applicable Laws or accounting rules, including GAAP; or (vii) that Parent is not a foreign person within the public announcement, pendency or completion meaning of Section 1445 of the transactions contemplated Code duly executed by this Agreement; provided further, however, that Parent.
(m) No Seller Party shall have entered into any event, occurrence, fact, condition Contract with K3 Catering or change referred its Affiliates affecting Buyer’s ability to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur terminate any Contract with K3 Catering relating to the extent that Business without penalty on 30 days’ notice or less.
(n) The Camp Services Agreement, dated July 17, 2018, between Target Logistics Management, LLC (d/b/a Target Lodging), Superior Lodging LLC and Superior Lodging Orla South, LLC shall have been terminated.
(o) Each Seller and Parent shall have delivered to Buyer a good standing certificate for such event, occurrence, fact, condition party from the Secretary of State or change has a disproportionate effect on Brio compared to other participants in similar Governmental Authority of the industries jurisdiction in which Brio conducts its businessessuch party is organized.
Appears in 1 contract
Samples: Asset Purchase Agreement (Target Hospitality Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 2.1 and Section 3.212.3, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Business Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Business Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 2.1 and Section 3.21 2.3, shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or any Seller which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Entity, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Schedule 1.3(b)(vii) shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Business Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Business Material Adverse Effect.
(f) The Customer Meetings shall have occurred and Buyer shall have been satisfied in its reasonable discretion with the results of its due diligence investigation based on such meetings of Sellers’ relationship with such customers and such customers’ perception of the products manufactured, and services provided to such customers by the Business (it being understood that (i) SEH’s deselection of GSI as a supplier in and of itself and (ii) SEH’s citation of the instability of the Business as the underlying reason for such deselection, in each case, shall not constitute a reasonable basis for Buyer’s dissatisfaction with the results of its due diligence investigation); provided, that if Buyer shall not have notified GSI of its dissatisfaction with the result of such meetings within 72 hours following any such meeting, then, for the purposes of this Section 7.2(f), Buyer shall be deemed satisfied with the results of such meeting.
(g) Sellers shall have delivered to Buyer duly executed counterparts to the extent that Transaction Documents (other than this Agreement) and such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared other documents and deliveries to other participants be received by Buyer set forth in the industries in which Brio conducts its businessesSection 1.3(b).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment or Buyer’s waiver, at satisfaction of the following further conditions:
(i) The Sellers shall have performed in all material respects all of their obligations hereunder required to be performed by them on or prior to the ClosingClosing Date, of each of the following conditions:
(aii) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents Agreement and in any certificate or other writing delivered by the Sellers pursuant hereto shall be true hereto, disregarding all qualifications and correct in all respects (in the case of any representation or warranty qualified by exceptions contained therein relating to materiality or Material Adverse Effect) or in all material respects Effect (in except to the case of extent any such representation or warranty not qualified by materiality requires disclosure of lists of items of a material nature or Material Adverse Effect) on and as of the date hereof and on above a specified threshold), shall be true at and as of the Closing Date with the same effect Date, as though if made at and as of such date (except those representations and warranties that address matters only to the extent a representation or warranty is expressly made as of a specified an earlier date, the accuracy of in which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 case such representation or warranty shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters date), with only such exceptions as of a specified date, would not in the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could aggregate reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether have a Material Adverse Effect has occurred or could reasonably be expected to occur and (iii) Buyer shall have received a certificate in the form of Exhibit D hereto signed by an executive officer of each Seller to the extent foregoing effect.
(b) Subject to compliance in all material respects by Buyer with its obligations under Section 7.01, Buyer shall have obtained an amount of financing not less than the Financing Amount pursuant to the Commitment Letters.
(c) Buyer shall have received share certificates and/or assignment deeds for all of the Shares, and any additional shares to be purchased separately pursuant to Section 2.01(d), and all customary documents it may reasonably request relating to the existence of the Sellers, the Companies and the Subsidiaries and the authority of the Sellers for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(d) Each Company and Subsidiary shall have been released from all guarantees of indebtedness or any other obligation of any Seller or any of its Affiliates in form and substance satisfactory to Buyer.
(e) Buyer shall have received a certification signed by XXX to the effect that such event, occurrence, fact, condition or change has XXX is not a disproportionate effect on Brio compared to other participants "foreign person" as defined in Section 1445 of the industries in which Brio conducts its businessesCode.
(f) Buyer shall have received (i) the Reimbursement Agreement duly executed by Suez and ONC and (ii) the Guarantee and the Noncompetition Agreement duly executed by Suez.
(g) Buyer shall have received the Sublease Agreement and the Assignment and Assumption Agreement duly executed by the Sublease Subsidiary and ONC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nalco Energy Services Equatorial Guinea LLC)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Shareholders and Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.24, the representations and warranties of Sellers Seller and Shareholders contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller and Shareholders contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Each of the Shareholders, Seller's Representative and Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, a Shareholder, Seller or a Target Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) Consent by the landlord(s) and sublandlord(s) with respect to the leases of the Company’s headquarters and warehouse located at 14412-20 and 00000 Xxxxxxxx Xxx, Xxxxx Xxxxx, Xxxxxxx, that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the businessparties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Company certifying as to correct and complete copies of (i) each Target Company's Organizational Documents, results (ii) incumbency and signatures of operationsofficers of the Company, condition and (financial or otherwiseiii) or assets resolutions of Briothe Board of Directors of the Company authorizing the execution and delivery of this Agreement and the Transaction Documents to which the Company is a party, or (b) and the ability taking of Sellers any and all actions reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” herein and therein.
(h) Buyer shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out have received resignations of or attributable to: the directors and officers of the Target Companies pursuant to Section 5.05.
(i) general economic Intentionally deleted.
(j) Intentionally Deleted.
(k) Seller's Representative shall have delivered to Buyer good standing certificates (or political conditions; (iiits equivalent) conditions generally affecting for each Target Company from the industries secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which Brio operates; each such Target Company is organized.
(iiil) any changes Seller shall have delivered a statement (in financial or securities markets in general; (iv) acts of war (whether or not declaredsuch form as may be reasonably requested by counsel to Buyer), armed hostilities dated as of the Closing Date and executed by the Seller's President, certifying that for purposes of satisfying Buyer's obligations under Treasury Regulation Section 1.1445-2(b)(2), the Seller is not a "foreign person" as defined in Section 1445 of the Code.
(m) If requested by Buyer, Seller's Representative shall cause the Company to deliver to Buyer written resignations, effective as of Closing, of all officers and directors of the Company.
(n) Seller's Representative shall have delivered to Buyer any necessary payoff or terrorismsimilar letters with respect to the repayment and satisfaction, simultaneous with or prior to Closing, of the Indebtedness (other than the Assumed Indebtedness), and the Company's assets shall have been released, or be eligible for release, from all security interests thereon and the escalation Company shall have taken all steps necessary to terminate, or worsening thereof; initiate the termination of, all UCC financing statements which have been filed with respect to such security interests (vexcept, in each case, with respect to the Assumed Indebtedness).
(o) Each Shareholder shall have delivered to Buyer a general release by such Shareholder of the Target Companies (and with respect to Pegasus by Xxxxxxx Xxxxxx and with respect to Xxxxxxxx by Xxxxxx Xxxxxxxx), in the form of Exhibit I attached hereto.
(p) Seller's Representative shall have delivered, or caused Seller to have delivered, to Buyer a certificate for 50,000 Units of limited liability company interest in the Company evidencing the Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by a stock power or other instruments of transfer duly executed in blank (or other satisfactory evidence of the existence and title to such equity in Buyer's sole discretion).
(q) Seller's Representative shall have delivered documents sufficient to cause Buyer's designees to be added, and the designees of the Target Companies to be removed, as signatories with respect to each Target Company's bank accounts and to terminate any action required powers of attorney.
(r) Seller's Representative shall have delivered to Buyer such other documents or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further.
(s) Seller's Representative shall have disclosed all known instances, howeverincidents, that any eventclaims, occurrencelawsuits, factdemands, condition investigations, fines, warnings, adverse health effects or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur other similar information relating to the extent that Products.
(t) Seller's Representative shall have preserved all health documents in his possession, regardless of source or date publish, and have provided such eventinformation to Buyer prior to the Closing Date.
(u) At or prior to Closing, occurrenceSeller's Representative and Buyer shall have agreed upon and executed the Closing Statement.
(v) Seller's Representative shall have delivered agreements and instruments effecting the Restructuring, factin form and content satisfactory to Buyer.
(w) The Target Companies shall have prepared and provided copies to Buyer of all necessary documents to enable all franchisees to register such franchisees as manufacturers post-closing (with such documents to be distributed to the franchisees following, condition or change has a disproportionate effect on Brio compared to other participants in and not prior to, the industries in which Brio conducts its businessesClosing).
Appears in 1 contract
Samples: Stock Purchase Agreement (Turning Point Brands, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(b) Seller shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by it prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(c) All approvals, consents and waivers shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ae) Seller shall have duly executed and delivered the businessAssignment to Buyer.
(f) The other Transaction Documents as set forth in Section 5.14, results shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of operationsSeller, condition that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(financial h) Seller shall have delivered to Buyer a good standing certificate (or otherwiseits equivalent) for the Company from the secretary of state or assets similar Governmental Authority of Brio, the jurisdiction under the Laws in which the Company is organized.
(i) Seller shall have delivered to Buyer such other documents or (b) the ability of Sellers instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) Agreement provided such request does not enlarge or extend any changes in applicable Laws existing liability or accounting rules, including GAAP; obligation of Seller or (vii) the public announcement, pendency impose on Seller any new or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition additional liability or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesobligation.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (National Waste Management Holdings, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Seller contained in Section 3.014.1, Section 3.024.2, Section 3.034.4, Section 3.06 and Section 3.214.14, the representations and warranties of Sellers the Seller contained in this Agreement, the Transaction Documents Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Company Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Seller contained in Section 3.014.1, Section 3.024.2, Section 3.03, Section 3.06 4.4 and Section 3.21 4.14 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or the Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on any Schedule hereto and from the Buyer’s principal lender shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Company Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to result in a Company Material Adverse Effect.
(f) The Seller shall have delivered each of the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants closing deliverables set forth in the industries in which Brio conducts its businessesSection 3.2(b).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.03, Section 3.06 4.04 and Section 3.21 4.19 shall be true true, complete and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined true, complete and correct in all respects as of that specified date in all respectssuch date). For purposes All of the other representations and warranties of Seller contained in this Agreement that (i) are qualified as to “materiality” or “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or another similar qualifier shall in the aggregateaggregate be true, materially adverse complete and correct in all respects when made and as of the Closing as if made at the Closing (except those representations and warranties that address matters only as of a specified date, which shall be true, complete and correct in all respects as of such date), and (ii) that are not qualified as to (a) the business, results of operations, condition (financial “materiality” or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” or another similar qualifier shall not include any eventin the aggregate be true, occurrencecomplete and correct in all material respects when made and as of the Closing as if made at the Closing.
(b) Seller shall have duly performed and complied in all material respects with all agreements, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) covenants and conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion Agreement and each of the transactions other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) Seller shall have furnished to Buyer a certificate dated the Closing Date and signed by Seller to the effect that the conditions precedent set forth in Sections 7.02(a) and (b) have been satisfied.
(d) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated by hereby. 43
(e) Seller shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to ) and such other documents and deliveries set forth in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesSection 3.02(a).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement and the Ancillary Documents shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01ARTICLE III, Section 3.024.01, Section 3.034.02, Section 3.06 and 4.03, Section 3.214.20, the representations and warranties of Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01ARTICLE III, Section 3.024.01, Section 3.034.02, Section 3.06 and 4.03, Section 3.21 4.20 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, any Sellers or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.04 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) The Ancillary Documents shall have been executed and delivered by the businessparties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) At least three Business Days before Closing, results Sellers shall have delivered to Buyer the Closing Indebtedness Certificate.
(h) Sellers shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the secretary of operations, condition state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(financial or otherwisei) or assets of BrioSellers shall have delivered, or caused to be delivered, to Buyer share certificates evidencing the Shares, free and clear of Encumbrances, accompanied by stock transfer forms duly executed.
(bj) Buyer shall have received a certificate, dated the ability Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 8.02(a) and Section 8.02(b) have been satisfied.
(k) Buyer shall have received true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the transfer of the Shares to Buyer (subject to payment of stamp duty by Buyer and stamping of the stock transfer forms by HMRC).
(l) Sellers shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) Agreement and the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesAncillary Documents.
Appears in 1 contract
Samples: Share Purchase Agreement (Super League Gaming, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 4.01 and Section 3.214.16, the representations and warranties of Sellers the Seller Parties contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Seller Parties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 4.01 and Section 3.21 4.16 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Each Seller Party shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or any Seller Party, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, is or are reasonably likely to be expected to result in a Material Adverse Effect.
(af) Each applicable Seller Party shall have delivered to Buyer duly executed counterparts of the businessTransaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(a).
(g) All Encumbrances relating to the Purchased Assets shall have been released in full, results other than Permitted Encumbrances, and the Seller Parties shall have delivered to Buyer written evidence, in form reasonably satisfactory to Buyer, of operationsthe release of such Encumbrances.
(h) Buyer shall have received a certificate, condition dated the Closing Date and signed by a duly authorized officer of each Seller Party, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (financial the “Seller Closing Certificate”).
(i) Buyer shall have received a certificate of the Secretary or otherwisean Assistant Secretary (or equivalent officer) or assets of Brioeach Seller Party certifying that attached thereto are true and complete copies of all resolutions authorizing the execution, or (b) delivery and performance of this Agreement and the ability consummation of Sellers to consummate the transactions contemplated hereby and thereby adopted by (i) the members, managers, board of directors and general partners, as applicable, of each Seller Party, and (ii) the Vertex Energy Stockholders holding not less than a majority of the voting power in Vertex Energy (the “Vertex Energy Stockholder Approval”), and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(j) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller Party certifying the names and signatures of the officers of each Seller Party authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(k) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that no Seller Party is a foreign person within the meaning of Section 1445 of the Code duly executed by each Seller Party.
(l) Buyer shall have received the Permits and Governmental Approvals that are listed on Section 7.02(l) of the Disclosure Schedules that are required for Buyer to own the Purchased Assets and operate the Business on and after the Closing in substantially the same manner as the Seller Parties prior to the Closing.
(m) Buyer shall have entered into a timely basis; provided, however, that “Material Adverse Effect” new agreement with Bunker One on terms mutually acceptable in the reasonable judgment of each of Bunker One and Buyer.
(n) Buyer shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable tohave received no less than three (3) Business Days prior to the Closing: (i) general economic or political conditionsoriginal titles for each vehicle and registered piece of equipment included in the Purchased Assets, to be held in escrow by Buyer’s counsel until, and subject to the occurrence of, the Closing; and (ii) conditions generally affecting copies of titles for all vehicles subject to Equipment Leases included in the industries in which Brio operates; Assigned Contracts.
(iiio) any changes in financial Each Seller Party shall have delivered to Buyer such other documents or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Error! Reference source not found., Section 3.06 3.04, Section 3.05, Section 3.08, Section 3.09, Section 3.17, Section 3.18, Section 3.22 and Section 3.213.24, the representations and warranties of Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Error! Reference source not found., Section 3.06 3.04, Section 3.05, Section 3.08, Section 3.09, Section 3.17, Section 3.18, Section 3.22 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer, Sellers or New Rise SAF, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.04 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Sellers shall have duly executed and delivered the businessAncillary Documents to Buyer.
(g) Buyer shall have received a certificate, results dated the Closing Date and signed by a duly authorized officer of operationsGL that each of the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied with respect to GL (the “GL Officers Certificate”).
(h) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of GL certifying that attached thereto are true and complete copies of all resolutions adopted by the managers and members of GL authorizing the execution, condition (financial or otherwise) or assets delivery and performance of Brio, or (b) this Agreement and the ability Ancillary Documents and the consummation of Sellers to consummate the transactions contemplated hereby on a timely basis; providedand thereby, howeverand that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and certifying the names and signatures of the officers of GL authorized to sign this Agreement, that the Ancillary Documents and the other documents to be delivered hereunder and thereunder (the “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: GL Secretary’s Certificate”).
(i) general economic Sellers shall have delivered to Buyer a good standing certificate (or political conditions; (iiits equivalent) conditions generally affecting for New Rise SAF from the industries secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which Brio operates; the Acquired Company is organized and each other jurisdiction in which an Acquired Company is qualified to do business (iiithe “Status Certificates”).
(j) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except Sellers shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 3.05; l.1445-2(b) that Sellers is not a foreign person within the meaning of Section 1445 of the Code (vithe “FIRPTA Certificate”).
(k) Sellers shall have obtained a Phase 1 Environmental Report that meets ASTM E 1527-13, and any changes update thereof as determined by the Buyer, in applicable Laws its sole discretion (the “Phase 1 Environmental Report”).
(l) The Inspection Period has ended and XCF shall have completed its due diligence investigation of New Rise SAF and the Property, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation.
(m) If requested by Bxxxx, each Related Party Contract has been terminated or accounting rulesamended to the satisfaction of XCF, including GAAP; at its election and in its sole discretion, unless necessary to the operations of the Property (the “Related Party Contract Terminations”).
(n) Sellers shall have delivered to Buyer such other documents or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Focus Impact BH3 NewCo, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of the Company and the Sellers contained in Section 3.013.01 (Organization and Qualification), Section 3.023.02 (Ownership of Membership Interests), Section 3.033.03 (Seller Authority), Section 3.06 3.05 (Brokers), Section 4.01 (Organization and Authority of the Company), Section 4.02 (Execution and Enforceability), Section 4.04 (Capitalization), Section 4.09(b) (Absence of Certain Changes, Events and Conditions) and Section 3.214.22 (Brokers), the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters expressly made only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects on as of that specified date). All other representations and warranties of the Company and the Sellers contained in ARTICLE III and ARTICLE IV, without giving effect to any materiality, Material Adverse Effect or similar materiality-based qualifiers contained therein, shall be true and correct in all respects as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters expressly made only as of a specified date, the accuracy of which shall be determined true and correct in all respects as of that specified date in all respectsdate). For purposes , except where the failure of this Agreement “such other representations and warranties to be true and correct would not have a Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or .
(b) The Company, the ability Representative and the Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date.
(c) The Restructuring shall have been completed in accordance with Section 6.15.
(d) Buyer shall have received a certificate of Sellers to consummate the transactions contemplated hereby on Company, dated as of the Closing Date, signed by a timely basis; providedduly authorized officer of the Company, however, certifying that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out each of or attributable to: (i) general economic or political conditions; (ii) the conditions generally affecting the industries set forth in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declaredSection 7.02(a), armed hostilities or terrorism, or the escalation or worsening thereof; (vSection 7.02(b) any action required or permitted by this Agreement, except pursuant to and Section 3.05; (vi7.02(c) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesbeen satisfied.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Catalent, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.05, Section 4.01, Section 4.02, and Section 3.214.03, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.023.05, Section 3.034.01, Section 3.06 4.02, and Section 3.21 4.03 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date.
(c) The Sellers’ Representative shall have duly executed and delivered the Estimated Closing Statement to Buyer.
(d) All approvals, consents and waivers that are listed on Schedule 8.02(d) shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means Effect with respect to any eventSeller or the Company, occurrence, fact, condition nor shall any event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect with respect to any Seller or the extent Company.
(f) Buyer shall have received a certificate, dated the Closing Date and signed by the Sellers’ Representative (in her capacity as Sellers’ Representative and not in her individual capacity), that each of the conditions set forth in Section 8.02(a) and Section 8.02(b) have been satisfied.
(g) Sellers shall have delivered to Buyer a payoff letter, in a form reasonably acceptable to Buyer, from each lender holding Indebtedness of Company, setting forth the aggregate amount of such eventIndebtedness outstanding as of the Closing Date and an agreement that, occurrenceif such amount is paid to such lender on the Closing Date, factsuch Indebtedness shall be repaid in full and that all liens held by such Lender affecting any property of the Company will be released.
(h) Sellers shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(i) Sellers shall have delivered to Buyer written resignations, condition or change has a disproportionate effect effective as of the Closing Date, of the officers and managers of the Company set forth on Brio compared Schedule 8.02(i).
(j) Sellers shall have delivered to other participants Buyer an employee transition agreement, in the industries in which Brio conducts its businessesform reasonably agreed by the Sellers’ Representative and the Buyer, duly executed by Site-Info Corporation and the Company.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Crawford & Co)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the The representations and warranties of Sellers Seller contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, Article IV (other than the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Seller Fundamental Representations) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date and the Seller Fundamental Representations shall be true and correct in all respects, in each case, with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date date); provided , however , that representations and warranties qualified by Material Adverse Effect or other materiality qualifier must instead be true and correct in all respects;
(b) Seller shall have duly performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them prior to or at the Closing;
(c) Seller shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement and the Employment Agreements) and such other documents and deliverables set forth in Section 3.02(a). For purposes ;
(d) Buyer shall have received a certificate, dated the Closing Date and signed on behalf of Seller by a duly authorized officer (in such Person’s capacity as such and not individually), that each of the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02 (i) have been satisfied (the “Closing Certificate”);
(e) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller;
(f) Since the date of this Agreement “Agreement, there shall not have been a Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.;
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.033.05, Section 3.06 3.21 and Section 3.213.22, the representations and warranties of Sellers the Company contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers the Company contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 3.05, Section 3.21 and Section 3.21 3.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Buyer, Merger Sub or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.04 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” .
(f) The Ancillary Documents shall not include any eventhave been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(g) Buyer shall have received resignations of the directors and officers of the Company pursuant to 15.05.
(h) Each of the Stockholders other than Vanderbilt University shall have duly executed and delivered a Restrictive Covenant Agreement (collectively, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: the “Restrictive Covenant Agreements”) in the form attached as Exhibit D.
(i) general economic At least three Business Days before Closing, the Company shall have delivered to Buyer the Closing Indebtedness Certificate and the Closing Transaction Expenses Certificate.
(j) The Company and Buyer shall have agreed on the Target Closing Working Capital Statement contemplated in 12.11(a)(i).
(k) The Company shall have delivered to Buyer a good standing certificate (or political conditions; (iiits equivalent) conditions generally affecting for the industries Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which Brio operates; the Company is organized.
(iiil) any changes in financial or securities markets in general; Buyer shall have received duly completed and executed Accredited Investor Questionnaires from all Stockholders.
(ivm) acts of war (whether or not declared), armed hostilities or terrorism, or The Certificates shall have deposited with the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except Buyer pursuant to Section 3.05; 2.08.
(vin) any changes Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in applicable Laws 17.02(a) and 17.02(b) have been satisfied.
(o) The Company shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of the Sellers contained in Section 3.01, Section 3.02, Section 3.033.04, Section 3.06 3.06, Section 3.23, Section 4.01 and Section 3.214.04, the representations and warranties of Sellers the Company and each Seller contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Company Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date as of the Effective Time with the same effect as though made at and as of such date and time (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Sellers contained in Section 3.01, Section 3.02, Section 3.033.04, Section 3.06 3.06, Section 3.23, Section 4.01 and Section 3.21 4.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date as of the Effective Time with the same effect as though made at and as of such date and time (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Company and each Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by the Company or such Seller prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or the Company, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers as reasonably required by Buyer or Buyer’s principal lender shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Company Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to result in a Company Material Adverse Effect.
(f) The Company and Sellers shall have delivered each of the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants closing deliverables set forth in the industries in which Brio conducts its businessesSection 2.03(a).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Sections 4.1 through 4.6 (inclusive) and Section 3.214.15, the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Sections 4.1 through 4.6 (inclusive) and Section 3.21 4.15 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(b) Each Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by him prior to or on the Closing Date.
(c) No Claim shall have been commenced against Buyer, a Seller or Timco that seeks to prevent or delay the Closing or that otherwise prohibits the Closing.
(d) All approvals, consents and waivers that are listed on Schedule 4.2(a) or Schedule 4.2(b), other than those approvals, consents and waivers listed on Schedule 8.2(d), shall have been received, and executed counterparts thereof shall have been delivered to Buyer, at or prior to the Closing.
(e) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(af) Sellers shall have duly executed and delivered an assignment of the businessTimco Interests to Buyer in form and substance satisfactory to Buyer.
(g) The Conversion shall have been completed and Sellers shall have delivered written evidence to Buyer in form and substance satisfactory to Buyer of the completion of the Conversion.
(h) The Xxxxxxxx Agreements shall have been terminated pursuant to Section 6.14 and Sellers shall have provided written evidence to Buyer in form and substance satisfactory to Buyer of the termination of the Xxxxxxxx Agreements.
(i) The Sellers shall have delivered to Buyer customary payoff letters from each financial institution or other lender to which the Company is obligated with respect to the repayment of Debt, results or to which any other Person is obligated for the repayment of operationsDebt to the extent such Debt is secured by the Timco Assets, condition confirming the total payment required to be made as of the Closing Date to repay in full all such Debt (financial or otherwiseincluding, for the avoidance of doubt, any prepayment penalties 44 required in connection with the repayment of such Debt), together with pay-off instructions for making such repayment on the Closing Date (such letters being referred to as the “Payoff Letters” and the aggregate of all such amounts being referred to as the “Debt Payoff Amount,” which shall be specified by the Sellers to the Buyer no less than two Business Days prior to the Closing Date).
(j) or The Sellers shall have delivered to Buyer invoices for the Transaction Costs from each of the applicable service providers, which service providers and amounts shall be specified by the Sellers to the Buyer no less than two Business Days prior to the Closing Date.
(k) Each of Xxxxx Xxxxx S. de X.X. de C.V. shall have been liquidated pursuant to Section 6.15 and Sellers shall have provided written evidence to Buyer in form and substance satisfactory to Buyer of such liquidation, and all of the assets of BrioXxxxx Xxxxx S. de X.X. de C.V. shall have been distributed or transferred to Timco and all of the liabilities of Xxxxx Xxxxx S. de X.X. de C.V. shall have been satisfied in full or assumed by Sellers.
(l) The other Transaction Documents to which a Seller is a party shall have been executed and delivered to Buyer.
(m) Buyer shall have received a certificate from each Seller, or dated the Closing Date and signed such Seller, certifying that each of the conditions set forth in Sections 8.2(a) and Section 8.2(b) have been satisfied.
(bn) Sellers shall have delivered to Buyer a certificate of existence and good standing and payment of all state Taxes for Timco issued by the ability appropriate public officials of Sellers the State of Louisiana, and a certificate of foreign qualification, good standing and payment of all state Taxes for Timco from the appropriate public officials of each of the states listed in Schedule 4.5, each dated as of a recent date.
(o) Each Seller shall have delivered to consummate Buyer a duly executed certification of non-foreign status in the transactions contemplated hereby form prescribed by Treasury Regulation § 1.1445-2(b)(2).
(p) Each Seller shall have delivered to Buyer a duly executed IRS Form W-9.
(q) Each Seller shall have delivered to Buyer a duly executed counterpart of the Closing Settlement Statement.
(r) Timco Real Estate, LLC shall have executed and delivered to the Buyer the Carthage Property Option Agreement in substantially the form attached hereto as Exhibit H.
(s) (i) Each of the Key Employees listed under “Tier One” of Schedule 6.20 shall have duly executed and delivered to Timco and Buyer Parent, as applicable, Key Employee Agreements, and (ii) all of the remaining Key Employees listed on a timely basisSchedule 6.20 shall have duly executed and delivered to Timco and Buyer Parent, as applicable, Key Employee Agreements; provided, however, that “Material Adverse Effect” the condition set forth in this clause (ii) of Section 8.2(s) shall not include any eventalso be satisfied if no more than two of the Key Employees described in this clause (ii) shall have failed to execute and deliver to Timco and Buyer Parent, occurrenceas applicable, factKey Employee Agreements.
(t) Timco shall have paid, condition or changeeffective immediately prior to the Closing, directly or indirectly, arising out of or attributable to: the Cash Retention Payments to those Key Employees whose corresponding Key Employee Agreements have been delivered pursuant to Section 8.2(s).
(u) The Sellers and Xxxxxxx Xxxxxx shall have duly executed and delivered to the Starr Transition Agreement to Buyer.
(v) Xxxxxx shall have delivered to Buyer a duly executed employment agreement in substantially the form attached hereto as Exhibit C.
(w) Xxxxxxx shall have delivered to Buyer a duly executed consulting agreement in a form mutually agreed to by the Buyer and Xxxxxxx.
(x) (i) general economic or political conditions; Timco shall have assigned and novated all of its rights and obligations under the Starr Lease to Starr and the landlord thereunder shall have consented to such assignment and novation, and (ii) conditions generally affecting Starr shall have agreed to terminate the industries Starr Sublease, effective as of such assignment and novation, in which Brio operates; each case pursuant to instruments reasonably satisfactory to Buyer.
(iiiy) any changes in financial or securities markets in general; (iv) acts Timco Real Estate, LLC and Southcoast Holdings, LLC, as applicable, shall have executed and delivered to Timco amendments to the leases set forth on Items 2, 4 and 5 of war (whether or not declaredSchedule 4.9(b), armed hostilities in each case that provide that Timco shall have the option to terminate such leases upon the fifth-year anniversary of the Closing Date.
(z) Sellers shall have delivered to Buyer such other documents or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant instruments as Buyer reasonably requests and are reasonably necessary to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Frank's International N.V.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.213.24, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof (or, in respect of the Additional Sellers, the date that they become party to this Agreement) and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 3.24 shall be true and correct in all respects on and as of the date hereof (or, in respect of the Additional Sellers, the date that they become party to this Agreement) and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes the avoidance of doubt, all terms, defined or otherwise, used in any representation and warranty of the Sellers shall be interpreted as of Closing.
(b) Buyer shall have received updated Disclosure Schedules of the Seller, accurate as of the Closing Date, and, without limitation, taking into account the completion of the Cannabiotix Acquisition.
(c) Sellers shall have duly performed and complied with, in all material respects, all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(d) No Action shall have been commenced against Buyer, Sellers or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(e) All approvals, consents and waivers that are listed on Schedule 3.05 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(f) From the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company Parties.
(g) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(h) Buyer shall have received resignations of the directors and officers of the Company Parties pursuant to Section 5.06.
(i) At least three Business Days before Closing, Sellers’ Representative shall have delivered to Buyer the Closing Indebtedness Certificate.
(j) Sellers’ Representative shall have delivered to Buyer the Estimated Closing Working Capital Statement contemplated in Section 2.04(a)(ii).
(k) Sellers’ Representative shall have delivered to Buyer a good standing certificate (or its equivalent) for each Company Party from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which such Company Party is organized or qualified to do business.
(l) Sellers shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Sellers are not foreign persons within the meaning of Section 1445 of the Code.
(m) Sellers shall have delivered, or caused to be delivered, to Buyer the Interest Assignments.
(n) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Sellers, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(o) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Sellers authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in and the aggregate, materially adverse to (a) Ancillary Documents and the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(p) Buyer shall have received a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition certificate of the Secretary or change, directly an Assistant Secretary (or indirectly, arising out equivalent officer) of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting Sellers certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of Sellers authorized to sign this Agreement, except pursuant the Ancillary Documents and the other documents to Section 3.05; be delivered hereunder and thereunder.
(viq) any changes in applicable Laws The Cannabiotix Acquisition shall have closed and the Additional Sellers shall have entered into an agreement to be bound by the terms of this Agreement as a “Seller” as if an original party hereto.
(r) Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests not less than 48 hours prior to Closing and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further.
(s) Sellers shall have delivered to Buyer the executed Xxxxx Employment Agreement.
(t) Sellers shall have delivered to Buyer an estoppel certificate for the Real Property lease identified in Disclosure Schedule Section 7.02(t), howeverexecuted by the applicable landlord substantially in the form contemplated in the applicable lease.
(u) The Operating Agreement shall have been amended to expressly require the Partnership Representative (as such term is defined in the Operating Agreement) to make a “push-out” election under Section 6226 of the Code, that any eventand such amendments shall be reasonably satisfactory to Buyer.
(v) Sellers’ Representative shall have delivered to Buyer the Allocation Schedule, occurrencewith such payments as set forth in this Agreement.
(w) Sellers shall have delivered to Buyer an executed release by Xxxxxx, factpursuant to which Xxxxxx shall, condition or change referred to in clauses upon receipt of payment at the Closing, (i) through release the Company, Buyer and Parent of all claims relating to her profits interest and (ivii) immediately above agree to the Lock-Up for the GTI Shares she receives at the Closing, the schedule for which her GTI Shares shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably released from the Lock-Up to be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect same as the Sellers.
(x) The Company shall have made all bonus payments set forth on Brio compared to other participants in the industries in which Brio conducts its businessesDisclosure Schedule 3.08(r).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement and the Ancillary Documents shall be subject to the fulfillment or Buyer’s 's waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 4.09, Section 4.16, Section 4.19, and Section 3.214.20 (collectively, the “Fundamental Representations”), the representations and warranties of Sellers contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The ) but only to the extent the aggregate of the inaccuracies and breaches of such representations and warranties of Sellers contained in Section 3.01Sellers, Section 3.02taken as a whole, Section 3.03, Section 3.06 and Section 3.21 would have a Material Adverse Effect. The Fundamental Representations shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or a Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) Sellers shall have delivered to Buyer duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.03(a).
(e) All liens, other than Permitted Encumbrances, relating to the Purchased Assets shall have been released in full and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such liens.
(f) Sellers shall have satisfied, either through forgiveness, appropriate escrow, payment or any combination, all amounts borrowed pursuant to the Paycheck Protection Program or other CARES Act program. At their option, Sellers may satisfy this condition through the PPP Escrow Account.
(g) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Sellers’ Closing Certificate”).
(h) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or other governing body of each Seller authorizing the execution, delivery and performance of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in and the aggregate, materially adverse to (a) Ancillary Documents and the business, results consummation of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; providedand thereby, however, and that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(i) general economic Buyer shall have received a certificate of the Secretary or political conditions; an Assistant Secretary (iior equivalent officer) conditions generally affecting of each Seller certifying the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts names and signatures of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by officers of each Seller authorized to sign this Agreement, except the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(j) Seller shall have delivered a consent or approval as required pursuant to Section 3.05; the SBA Procedural Notice from the PPP Lender in connection with the transactions contemplated under this Agreement.
(vik) any changes in applicable Laws Sellers shall have delivered to Buyer such other documents or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiverwaiver in Buyer’s discretion, at or prior to the Closing, of each of the following conditions:
(a) Other Between the Effective Date and the Closing, there shall be no Material Adverse Effect in the operations or condition of SCNRG’s assets or the financial condition or liabilities (as reflected in SCNRG’s Balance Sheet or otherwise) of SCNRG other than such expenditures, business arrangements and changes in operations as mutually agreed by the representations parties prior to Closing and warranties of Sellers contained as provided in Section 3.01this Agreement. Between the Effective Date and the Closing, Section 3.02there shall not have occurred any Material Adverse Effect with respect to SCNRG, Section 3.03nor shall any event or events have occurred that, Section 3.06 and Section 3.21individually or in the aggregate, the could reasonably be expected to result in a Material Adverse Effect with respect to SCNRG.
(b) The representations and warranties of Sellers contained in this Agreement, the Assignment and the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof Effective Date and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations .
(c) Sellers shall have duly performed and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct complied in all material respects on with all agreements, covenants and as conditions required by this Agreement and each of the date hereof and other Transaction Documents to be performed or complied with by Sellers prior to or on and as of the Closing Date Date; provided, that, with the same effect respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as though made at and as of such date (except those representations and warranties that address matters only as of a specified dateso qualified, the accuracy of which shall be determined as of that specified date in all respects). For purposes .
(d) All executed approvals, consents and waivers that are listed on Schedule 3.5 shall have been received, and shall have been delivered to Buyer at or prior to the Closing.
(e) Sellers shall have duly executed and delivered the Assignment to Buyer.
(f) The other Transaction Documents shall have been executed and delivered and true and complete copies of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected the executed Transaction Documents shall have been delivered to become, individually or in the aggregate, materially adverse to Buyer.
(ag) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability Buyer shall have received a customary certificate of Sellers certifying the documents and signatures for the Transaction.
(h) Sellers shall have delivered to consummate Buyer a good standing certificate (or its equivalent) for SCNRG from the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition secretary of state or change, directly or indirectly, arising out similar Governmental Authority of or attributable to: the jurisdiction under the Laws in which SCNRG is organized.
(i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant Sellers shall have delivered to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion Buyer copies of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to options and schedule of liabilities as set forth in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesSection 6.2.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Sara Creek Gold Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than Buyer shall have completed its due diligence investigation of the Companies and the Business, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation;
(b) The representations and warranties of the Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21, the representations and warranties of Sellers Companies contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date the Closing Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). ;
(c) The representations Sellers and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 the Companies shall have duly performed and Section 3.21 shall be true and correct complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date;
(d) No Action shall have been commenced against Buyer, Parent, the Sellers or the Companies, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and as of the date hereof and on and as of be in effect, which restrains or prohibits any transaction contemplated hereby;
(e) Buyer shall have received a certificate, dated the Closing Date with and signed by a duly authorized officer of each Company and Sellers’ Agent, that each of the same effect conditions set forth in Section 8.02(b) and 8.02(c) have been satisfied.
(f) All approvals, consents and waivers that are listed on Section 3.02 and Section 4.04 of the Company Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing;
(g) The Companies continue to hold all Permits, licenses (including the Cannabis Licenses), operating authorities, and the like, and such Permits, licenses and authorities (including the Cannabis Licenses) are not subject to termination or cancellation as though made at and a result of the Closing, in a manner sufficient to allow the Companies to operate their Business as of such presently conducted or proposed to be conducted.
(h) From the date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). For purposes of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on result in a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: ;
(i) general economic The Buyer shall have entered into employment or political conditions; consulting agreements with Key Personnel in substantially the forms attached as Exhibit G-1 and G-2;
(iij) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of The Buyer and Parent shall have received approval for the transactions contemplated by this AgreementAgreement from their respective Boards of Directors;
(k) Buyer shall have entered into a definitive agreement with all of the equity owners of the Nx.Xxx Companies; provided furtherand
(l) An Affiliate of Buyer shall have entered into a definitive agreement with Gravitas Nevada Ltd. (“Gravitas”), however, that any event, occurrence, fact, condition or change referred Verdant Nevada LLC and Green Ache’rs Consulting Limited in order to acquire all of the outstanding shares of Gravitas; and
(m) The Buyer shall have received all of the deliveries set forth in clauses (iSection 2.08(a) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businessesherein.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement Securities Purchase and the Merger shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each satisfaction of the following conditions, any or all of which may be waived, in whole or in part, by Buyer:
(a) Other (i) the Fundamental Representations and Warranties (other than those in Sections 3.8(a)-(g)) shall be true and correct at and as of the representations Closing Date (or in the case of Fundamental Representations and warranties Warranties (other than those in Sections 3.8(a)-(g)) that are made as of Sellers contained in Section 3.01a specified date, Section 3.02, Section 3.03, Section 3.06 such Fundamental Representations and Section 3.21Warranties shall be true and correct as of such specified date) with the same force and effect as though made on and as of such date, the representations and warranties of the Company and the Sellers contained in this Agreement, Agreement (other than the Transaction Documents Fundamental Representations and any certificate Warranties other than those in Sections 3.8(a)-(g)) disregarding all qualifications contained herein relating to materiality or other writing delivered pursuant hereto Material Adverse Effect shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on at and as of the Closing Date with (or in the same effect as though made at and as case of such date (except those representations and warranties that address matters only are made as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The such representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 and Section 3.21 shall be true and correct in all respects as of such specified date) with the same force and effect as though made on and as of such date, except to the date hereof and on and as of extent that the Closing Date with the same effect as though made at and as failure of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall to be determined as of that specified date in all respects). For purposes of this Agreement “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to becometrue and correct, individually or in the aggregate, materially adverse would not have a Material Adverse Effect, and the representations and warranties contained in in Sections 3.8(a)-(g)) disregarding all qualifications contained herein relating to materiality or Material Adverse Effect shall be true and correct at and as of the Closing Date (or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date) with the same force and effect as though made on and as of such date, in all material respects; and (ii) the agreements and covenants to be performed or satisfied by the Sellers and the Company hereunder at or prior to the Closing Date shall have been duly performed or satisfied in all material respects;
(b) The Sellers and the Company shall have delivered, or caused to be delivered, to Buyer in customary form reasonably acceptable to Buyer (i) an officer’s certificate of the Company, dated the Closing Date, as to the satisfaction of the conditions set forth in Section 7.2(a) (as it relates to representations, warranties, agreements and covenants of the Company), (ii) an officer’s certificate of the Sellers’ Representative on behalf of the Sellers, dated the Closing Date, as to the satisfaction of the conditions set forth in Section 7.2(a) (as it relates to representations, warranties, agreements and covenants of the Sellers) and (iii) evidence, in form and substance reasonably satisfactory to Buyer, of satisfaction of the covenants set forth in Sections 6.7(c) and 6.7(d);
(c) The Sellers shall have delivered to Buyer written opinions of Xxxxx Xxxxx LLP, dated as of the Closing Date, substantially in the form of Exhibit E, to the effect that (a) commencing with MIPT’s first taxable year, (i) MIPT has been organized and operated in conformity with the businessrequirements for qualification as a REIT under the Code, results and (ii) MIPT’s actual method of operationsoperation through the Closing Date has enabled it to meet, condition (financial or otherwise) or assets for each of Brioits 2007 through 2012 taxable years and from January 1, or 2013 through the Closing Date, the requirements for qualification and taxation as a REIT under the Code, and (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; providedcommencing with TPP’s first taxable year, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; TPP had been organized and operated in conformity with the requirements for qualification as a REIT under the Code until it merged with MIPT and (ii) conditions generally affecting TPP’s actual method of operation through the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts effective date of war (whether or not declared)its merger with MIPT enabled it to meet, armed hostilities or terrorismfor each of its 2007 through 2013 taxable years, or the escalation or worsening thereof; (v) any action required or permitted by this Agreementrequirements for qualification and taxation as a REIT under the Code. In rendering such opinions, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above Xxxxx Xxxxx LLP shall be taken into account in determining whether a Material Adverse Effect has occurred or could entitled to rely upon assumptions and representations reasonably be expected satisfactory to occur it, it being understood that Buyer shall have the right to the extent that such event, occurrence, fact, condition or change has a disproportionate effect reasonably comment on Brio compared to other participants in the industries in which Brio conducts these assumptions and representations and include therein facts and information obtained by Buyer during its businessesdue diligence; and
(d) The Mexico Disposition shall have been consummated.
(e) The U.S. Partnership Contributions shall have been consummated.
Appears in 1 contract
Samples: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 4.21, and Section 3.214.22, the representations and warranties of Sellers Seller Parties contained in this Agreement, the Transaction Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers Seller contained in Section 3.014.01, Section 3.024.02, Section 3.034.03, Section 3.06 and Section 3.21 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. For purposes No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse to (a) with or without the businesslapse of time, results of operations, condition (financial or otherwise) or assets of Brio, or (b) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur result in a Material Adverse Effect.
(e) Seller shall have delivered to Buyer all documents and deliveries set forth in Section 3.02(a).
(f) Seller shall have afforded Buyer the opportunity to meet with certain key employees identified by the Buyer no later than one (1) week prior to the extent Closing Date.
(g) Buyer shall have received proof, in form and substance reasonably satisfactory to the Buyer that such eventthe Pre-Closing Employee Obligations other than the Accrued Employee Vacation have been paid in full on or before Closing.
(h) Buyer shall have received proof, occurrencein form and substance reasonably satisfactory to the Buyer that all employees of the Seller have been terminated as of the Closing Date.
(i) Buyer shall have received a certificate, factdated the Closing Date and signed by a duly authorized officer of Seller, condition or change has a disproportionate effect on Brio compared to other participants that each of the conditions set forth in Section 7.01(a) and Section 7.01(b) have been satisfied (the industries in which Brio conducts its businesses“Seller Closing Certificate”).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment satisfaction or Buyer’s waiver, waiver (if permitted by applicable Law) at or prior to the Closing, Closing of each of the following conditions:
(ai) Other than The representations and warranties of the Sellers and the Company set forth in Sections 4.1, 4.2, and 4.23, and the representations and warranties of the Sellers contained set forth in Section 3.01Sections 5.1, Section 3.02, Section 3.03, Section 3.06 5.2 and Section 3.21, the representations and warranties of Sellers contained in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall 5.5 must be true and correct in all respects (in the case of without giving effect to any representation or warranty qualified by materiality or Material Adverse Effectmaterial adverse effect qualifications contained therein) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only to the extent expressly made as of a specified date, the accuracy of in which shall be determined case as of that such specified date in all respects). The date) and (ii) the representations and warranties of the Sellers contained and the Company set forth in Section 3.01ARTICLE IV other than those set forth in Sections 4.1, Section 3.024.2, Section 3.034.23, Section 3.06 and Section 3.21 shall the representations and warranties of the Sellers set forth in ARTICLE V other than those set forth in Sections 5.1, 5.2 and 5.5, must be true and correct in all respects on and (without giving effect to any materiality or Material Adverse Effect qualifications contained therein) as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only to the extent expressly made as of a specified date, the accuracy of in which shall be determined case as of that such specified date in all respectsdate). For purposes , except where the failure of this Agreement “such representations and warranties to be so true and correct would not have a Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of Brio, or .
(b) The Sellers must have performed in all material respects all obligations required to be performed by them under this Agreement on or prior to the ability of Sellers to consummate Closing Date.
(c) The applicable waiting periods, if any, under the transactions contemplated hereby on a timely basis; providedHSR Act and Other Anti-Trust Laws shall have expired or been terminated.
(d) No temporary restraining order, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition preliminary or change, directly permanent injunction or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting other Order preventing the industries in which Brio operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion consummation of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above Agreement shall be taken into account in determining whether a effect.
(e) No Material Adverse Effect has shall have occurred or could reasonably be expected to occur to since the extent that such eventBalance Sheet Date.
(f) Buyer shall have received the Escrow Agreement, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in executed by each of the industries in which Brio conducts its businessesSeller Representative and the Escrow Agent.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the (i) The representations and warranties of Sellers contained in Section 3.01, Section 3.02, Section 3.03, Section 3.06 Article III and Section 3.21, the Article IV (other than those representations and warranties of Sellers contained referenced in this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be clause (ii) below) are true and correct in all respects (in the case of disregarding any representation or warranty qualified by materiality or Material Adverse Effect) Effect or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effectqualifications set forth therein) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined are true and correct in all respects as of that specified date in all respectsdate). The , except where failure of such representations and warranties of Sellers to be true and correct has no Material Adverse Effect and (ii) the representations and warranties contained in Section 3.01, Section 3.02, Section 3.033.05, Section 3.06 3.07(a), Section 3.23, Section 4.01, Section 4.03, and Section 3.21 shall be 4.05 are true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined are true and correct in all respects as of that specified date date).
(b) Sellers and Sellers’ Representative shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers and Sellers’ Representative shall have performed such agreements, covenants and conditions, as so qualified, in all respects). For purposes .
(c) All approvals, consents and waivers that are listed on Schedule 3.04 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement “Agreement, there shall not have occurred any Material Adverse Effect” means , nor shall any event, occurrence, fact, condition event or change that is, or could reasonably be expected to becomeevents have occurred that, individually or in the aggregate, materially adverse with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(ae) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the businessparties thereto (other than Buyer) and true and complete copies thereof shall have been delivered to Buyer.
(f) Buyer shall have received a certificate, results dated the Closing Date and signed by Sellers’ Representative, that each of operationsthe conditions set forth in Section 8.02(a) and Section 8.02(b) have been satisfied.
(g) Buyer shall have received a certificate of Sellers’ Representative (on behalf of all Sellers) certifying that attached thereto are true and complete copies of (i) all resolutions adopted by the board of directors of each Company authorizing the execution, condition (financial or otherwise) or assets delivery and performance of Brio, or (b) the ability Transaction Documents to which such Company is a party and the consummation of Sellers to consummate the transactions contemplated hereby on a timely basis; providedthereby, however, and that “Material Adverse Effect” all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated thereby and (ii) certifying as to the incumbency of those authorized to execute this Agreement or any of the other Transaction Documents to be executed and delivered by Sellers or Sellers’ Representative.
(h) Buyer shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out have received resignations of or attributable to: the directors and officers of each Company pursuant to Section 6.05.
(i) general economic Buyer shall have received certificates issued by appropriate Governmental Authorities evidencing the status of each Company, as of a date not more than five calendar days prior to the Closing Date, in the jurisdiction of their incorporation, formation or political conditions; organization, and as of a date not more than five calendar days prior to the Closing Date, or such longer period as is reasonably practicable under the circumstances, in each other jurisdiction in which such Company is qualified to conduct business as a foreign entity.
(j) Each Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code.
(k) Buyer shall have received properly completed IRS Forms 8023 executed by the shareholders of each Company.
(l) Each Seller shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the Shares owned by such Seller, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed.
(m) Sellers’ Representative shall have delivered the Payoff Documents.
(n) Each of the employment agreements set forth on Schedule 8.02(n) shall have been terminated.
(o) Each Principal and each individual identified on Schedule 1.01(b) shall have entered into his Employment Agreement.
(p) The Financing shall have been consummated.
(q) Each Company shall have (i) conducted an internal audit of its Form I-9s and (ii) conditions generally affecting corrected, to the industries in which Brio operates; (iii) reasonable satisfaction of Buyer, any changes in financial Form I-9 errors or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.05; (vi) any changes in applicable Laws or accounting rulesdiscrepancies discovered during that internal audit, including GAAP; obtaining any required employment verification paperwork that may be missing for any employee.
(r) Each Seller shall have delivered to Buyer such other documents or (vii) the public announcement, pendency or completion of instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on Brio compared to other participants in the industries in which Brio conducts its businesses.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sterling Construction Co Inc)
