Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Parent and Purchaser’s waiver, at or prior to the Closing, of each of the following conditions: (a) Other than the Seller Fundamental Representations, the representations and warranties of 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 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement. (c) No Action shall have been commenced against Parent, Purchaser, Seller or any of the Unitholders which would prevent the Closing. (d) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or prior to the Closing. (e) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets. (f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c). (g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date. (h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens. (i) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate"). (j) Parent and Purchaser 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 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. (k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E. (l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement. (m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees. (n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (AgEagle Aerial Systems Inc.)
Conditions to Obligations of Parent and Purchaser. The All obligations of Parent and Purchaser to consummate the transactions contemplated by under this Agreement shall be are subject to the fulfillment or Parent and Purchaser’s waiverfulfillment, at or prior to or at the Closingtime of closing, of each of the following conditionsconditions hereinafter enumerated:
(a) Other than All consents or approvals (including all regulatory approvals) required to be obtained by Purchaser in order to undertake its obligations hereunder have been obtained, provided that this condition may only be relied upon by any such party if it has diligently exercised its best efforts to procure all such consents or approvals and the Seller Fundamental Representationshas not waived the need for all such consents and approvals;
(b) The key employees of Seller, the including Xxxxx Xxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxx shall have entered into exclusive employment or consulting contracts, with a minimum term of three (3) years, with Purchaser, such agreements to be on terms mutually acceptable to Purchaser and such employees;
(c) Seller shall deliver validly executed Board and shareholder resolutions approving this Agreement;
(d) Seller’s representations and warranties of Seller contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be hereunder are 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 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).Date;
(be) Seller has fulfilled and each of the Unitholders shall have duly performed and complied with satisfied all its covenants, agreements, covenants and conditions required by this Agreement.
(c) No Action shall have been commenced against Parent, Purchaser, Seller or any of the Unitholders which would prevent the Closing.
(d) All Consents that are listed other obligations hereunder on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.Closing Date;
(f) Seller shall have has duly executed and delivered all other transaction documents related hereto required to Parent be executed by Seller and Purchaser duly executed counterparts has otherwise received all other closing deliveries required to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c).be delivered by Seller hereunder;
(g) Purchaser shall have received all Authorizations that are necessary for it No material adverse event with respect to conduct Seller or the Seller’s Business as conducted by Seller as of the Closing Date.has occurred or is continuing; and
(h) All Liens relating to the Purchased Assets There shall have been released not be in full, effect any injunction or other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser shall have received a certificate, dated the Closing Date and signed order issued by a duly authorized officer court of Seller, that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate").
(j) Parent and Purchaser shall have received a certificate of the Secretary competent jurisdiction restraining 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 other Transaction Documents and prohibiting 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.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and . In addition, there shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for no judicial or administrative actions, proceedings or investigations pending or, to the license knowledge of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable threatened, which question the validity of this Agreement or any action taken or to Purchaser. be taken by the Purchaser or the Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Datein connection herewith.
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser. The obligations obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction, or Parent and the waiver at Purchaser’s waiver, at or prior to the Closingsole and absolute discretion, of each of all the following further conditions:
(a) Other than The Company, the Seller Fundamental Representations, Class A Members and the Manager shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date.
(b) All of the representations and warranties of Seller the Company, the Manager and the Class A Members contained in this Agreement, the other Transaction Documents Additional Agreements and in any certificate delivered by the Company, the Manager or other writing delivered any Class A Member 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 effectMaterial Adverse Effect, regardless of whether it involved a known risk, shall: (i) or in all material respects (in the case of any representation or warranty not qualified by materiality or material adverse effect) on be true, correct and complete at and as of the date hereof of this Agreement (except as provided in the disclosure schedules or as provided for in Article V), or, (ii) if otherwise specified, when made or when deemed to have been made, and on (iii) be true, correct and complete as of the Closing Date Date, in the case of (i) and (ii) with only such exceptions as could not in the same effect as though made at and as of such date (except those representations and warranties that address matters only as of aggregate reasonably be expected to have a specified date, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this AgreementMaterial Adverse Effect.
(c) No Action There shall have been commenced against Parentno event, Purchaserchange or occurrence which individually or together with any other event, Seller change or any occurrence, could reasonably be expected to have a Material Adverse Effect, regardless of the Unitholders which would prevent the Closingwhether it involved a known risk.
(d) All Consents that are listed on Section 4.3(aPurchaser shall have received a certificate signed by the Manager of the Company and all Class A Members to the effect set forth in clauses (a) through (c) of the Disclosure Schedules this Section 12.2.
(e) No court, arbitrator or other Authority shall have been issued any judgment, injunction, decree or order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, the ownership by Purchaser of any of the Units or the effective operation of the Business by the Company and its Subsidiaries after the Closing Date.
(f) Purchaser shall have received all documents it may reasonably request relating to the existence of each of the Companies and the authority of the Company, the Class A Members and the Manager to enter into and perform under this Agreement, all in form and substance reasonably satisfactory to Parent Purchaser and Purchaserits legal counsel, including (i) a copy of the Certificate of Formation, or other organizational document, of the Company and executed counterparts thereof shall have been delivered to Parent each of its Subsidiaries and Purchaser at or prior to Portfolio Companies, certified as of a recent date by the Closing.
Secretary of State of their respective jurisdictions of organization, (eii) From copies of the Company’s Operating Agreement as effective on the date hereof; (iii) copies of the bylaws, operating agreement or other governing document of each of the Company’s Subsidiaries and Portfolio Companies, (iv) copies of resolutions duly adopted by the Manager of the Company and by the Majority Interest or consent of the Company’s Members authorizing this Agreement, there shall not have occurred the Additional Agreements and the transaction contemplated hereby and thereby, (v) a certificate of the Manager of the Company certifying as to signatures of the officer(s) executing this Agreement and any material adverse effect on certificate or document to be delivered pursuant hereto, together with evidence of the Business or incumbency of such Manager, and (vi) recent good standing certificates regarding the Purchased Assets, nor shall any event or events have occurred that, individually or Company and each of its Subsidiaries and Portfolio Companies from the office of the Secretary of State of each of their respective states of formation and each other jurisdiction in which the aggregate, with or without the lapse of time, could reasonably be expected Company and its Subsidiaries and Portfolio Companies is qualified to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c)do business.
(g) Purchaser shall have received from the Members certificates representing the Units, duly endorsed in blank by the applicable Members, or accompanied by stock powers duly executed in blank by the applicable Members, with all Authorizations that are necessary for it to conduct the Business as conducted by Seller as of the Closing Datetransfer Tax and other revenue stamps, acquired at each such Member’s expense, affixed.
(h) All Liens relating Purchaser shall have received the organizational record books, minute books, stock ledgers, and stock transfer books of the Company.
(i) Purchaser shall be fully satisfied, in its sole discretion exercised in good faith, with the results of its and its representatives’ review of the Business, the Units and the Company and its Subsidiaries and Portfolio Companies (including any review of the capitalization, assets, processes, systems, financial condition, and prospects of the Business and the Company and its Subsidiaries and Portfolio Companies), provided that no such review shall affect any representation or warranty of the Company or any Member given hereunder or in any instrument related to the Purchased Assets transactions contemplated hereby.
(j) Purchaser shall have received copies of all Third Party Consents (including the consents of the landlords under the Officer Leases), in form and substance reasonably satisfactory to Purchaser, and no such Third Party Consent shall have been released in fullrevoked.
(k) The Company and the Manager shall have delivered to Purchaser documents satisfactory to Purchaser to evidence the release of all Liens on any Units and, other than Permitted Liens, any portion of the Company’s assets and Seller the filing of appropriate UCC-3 Amendment (Termination) Statements or other termination documents.
(l) Pxxxxxx Xxxxxx and Exxx Xxxxxx shall have entered into and delivered to Purchaser written evidencea copy of their employment agreements with Purchaser in Form and substance satisfactory to Purchaser and the other members of the Company’s senior management team identified on Schedule 12.2(l) shall have entered into and delivered to Purchaser a copy of their employment agreement with Purchaser Company, each in Form and substance satisfactory to Purchaser (collectively, the “Employment Agreements”), and the same shall be in full force and effect.
(m) Purchaser shall have received from each Class A Member a general release of all claims against the Company and its Subsidiaries and Portfolio Companies and their officers, directors, employees and Affiliates (other than Purchaser solely in connection with this Agreement and the Additional Agreements) in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such LiensPurchaser.
(n) Counsel to the Company shall have delivered an opinion in form and substance satisfactory to Purchaser’s counsel.
(o) The Key Personnel shall have executed the Confidentiality and Non-Solicitation Agreements and the same shall be in full force and effect, and the Company and the Member (to the extent it has employed anyone on behalf of the Company) shall have entered into Labor Agreements with each of its employees to the extent required by law, and satisfied all accrued obligations of the Company and its Subsidiaries applicable to its employees.
(p) Purchaser shall have received (i) a statement from each Member under Section 1445(b)(2) of the Code certifying as to its non-foreign status for U.S. federal income tax purposes (each, a “FIRPTA Certificate”), and (ii) a duly completed and executed IRS Form W-9 from each Member relating to its non-foreign status for U.S. federal income tax purposes.
(q) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")final Schedules.
(jr) Parent The Company shall have secured a directors and officers liability insurance policy for a minimum coverage amount of $10 million for the pre-transaction directors and officers, which will cover the directors and officers for a period of six years after the Closing. Such directors and officers liability policy shall take effect upon the consummation of the Transaction.
(s) Purchaser 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 Outstanding Permits, each of directors of Seller authorizing the execution, delivery which shall be valid 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 effect, and are all the resolutions adopted in connection with the transactions contemplated hereby and therebyno Outstanding Permit shall have been revoked.
(kt) Each Seller Investor Party other than A majority of the Unitholders holders of the outstanding Parent Warrants shall have delivered approved an amendment to the Parent and Purchaser an Acknowledgment and Joinder Warrant Agreement in providing that upon the form attached hereto as Exhibit E.merger, consolidation or reorganization of Parent, the Parent Warrants shall be convertible into warrants to purchase common stock, or other equivalent security, of the surviving corporation of the surviving entity of such merger, consolidation or reorganization.
(lu) Seller The requisite majority of Parent’s shareholders shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate approved the transactions contemplated by this AgreementAgreement in accordance with the provisions of Parent’s organizational documents and Cayman Law.
(mv) Each Purchaser shall have completed, and be satisfied in all respects with, the results of its ongoing due diligence investigation of the employees business, assets, operations, financial condition, contingent liabilities, prospects and material agreements of the Business whose names are included on Schedule 7.2(m) shall have accepted Company and relating to the Company’s assets. Purchaser’s offer satisfaction of employment and the foregoing shall be Transferred Employeesdetermined in its sole discretion.
(nw) Seller The holders of not more than five percent (5%) of the Parent Ordinary Shares shall have obtained a new agreement exercised their dissenters’ rights in accordance with Pix4D for Cayman Law.
(x) The Parent and the license Purchaser shall have received, within 30 days of Pix4D software on terms the execution of this Agreement, the Audited Annual Financial Statements and the Six Month Interim Financial Statements, both in form satisfactory to Purchaser, including a provision that such agreement is freely assignable to the Parent and the Purchaser. Seller The Audited Annual Financial Statements shall pay any usage fees under such new agreement through be the Closing Date and Purchaser shall pay such fees after same as the Closing DateUnaudited Annual Financial Statements in all material respects.
Appears in 1 contract
Samples: Merger and Share Exchange Agreement (China VantagePoint Acquisition Co)
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment satisfaction (or waiver by Parent and Purchaser’s waiver, at or prior to the Closing, of each ) of the following conditions:
(a) Other than the Seller Fundamental Representations, the representations and warranties of 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 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) Seller and each of the Unitholders Company shall have duly performed and complied with all agreementsof its obligations, covenants and conditions agreements hereunder required to be performed or complied with by this Agreement.
(c) No Action shall have been commenced against Parent, Purchaser, Seller or any of the Unitholders which would prevent the Closing.
(d) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser it at or prior to the Closing.
(e) From the date Effective Time, disregarding for these purposes any exception with respect to such obligation, covenant or agreement qualified by “Material Adverse Effect,” “material,” “materiality” and words of this Agreementsimilar import, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred thatexcept for such failures to perform which, individually or in the aggregate, with or without the lapse of time, could would not reasonably be expected to result in have a material adverse effect Material Adverse Effect on the Business or Company; provided, however, that for purposes of this Section 7.02(a), “Material Adverse Effect” on the Purchased Assets.Company shall mean a Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
(fb) Seller except as affected by actions specifically described in and permitted by this Agreement, the representations and warranties of the Company contained in this Agreement shall be true on and as of the closing date as if made on and as of such date (other than to the extent that any such representation and warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date), disregarding for these purposes any exception in such representation or warranty qualified by “Material Adverse Effect,” “material,” “materiality” and words of similar import, except for such failures to be true which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that for purposes of this Section 7.02(b), “Material Adverse Effect” on the Company shall mean a Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
(c) Parent shall have received a certificate signed on behalf of the Company by the President or Chief Executive Officer or a Vice President of the Company certifying as to the satisfaction of the conditions contained in Sections 7.02(a) and (b); and
(d) Each of the Company and its Subsidiaries shall have delivered to Parent all of the certificates, instruments and Purchaser duly executed counterparts other documents required to be delivered by such company or by any Person retained by the Company and its Subsidiaries at or prior to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c).
(g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business closing date as conducted by Seller as of the Closing Date.
(h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate").
(j) Parent and Purchaser 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 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.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated required by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment or Parent and Purchaser’s waiver, at or prior to the Closing, of each satisfaction of the following conditions:
(ai) Other than the Seller Fundamental RepresentationsRequisite Company Stockholder Approval shall have been obtained;
(ii) the Company and its Subsidiaries shall have procured all of the third party and governmental consents specified in Section 5(b) and the first section of Section 5(c) above, including any required consents under the agreements listed on the Company Disclosure Schedule;
(iii) the representations and warranties of Seller contained set forth in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto Section 3 above 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 Date; 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 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) Seller and each of the Unitholders Company shall have duly performed and complied with all agreementsof its covenants hereunder in all material respects through the Closing;
(iv) there shall be in effect no preliminary or permanent injunction or any judgment, covenants and conditions required order, decree, ruling, or charge which would (w) prevent the consummation of any of the transactions contemplated by this Agreement.
, (cx) No Action shall have been commenced against Parent, Purchaser, Seller or cause any of the Unitholders which would prevent transactions contemplated by this Agreement to be rescinded following consummation, (y) affect materially and adversely the Closing.right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Company, or (z) affect materially and adversely the right of any of the former Subsidiaries of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(dv) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or change in the aggregatebusiness, with financial condition, operations or without results of operations of the lapse Company and its Subsidiaries taken as a whole, except (A) as contemplated by this Agreement or (B) as occurs after the date hereof directly as a result of timespecific facts which were known prior to the date hereof to Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxx, could reasonably be expected to result as directors and officers of the Company in a material adverse effect on the Business or the Purchased Assets.performance of their duties;
(fvi) Seller the Company shall have delivered to Parent and Purchaser duly executed counterparts a certificate to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth effect that each of the conditions specified above in Section 2.3(c).6(a)(i)-(vi) is satisfied in all respects;
(gvii) the Credit Agreement shall have been executed by the parties thereto, and shall be in full force and effect and shall provide available funds for the transactions contemplated by this Agreement of not less than $39,000,000;
(viii) Purchaser and/or Parent shall have received all Authorizations that are necessary equity financing funds for it to conduct the Business as conducted by Seller as purpose of consummating the Closing Date.Merger of not less than $5,000,000;
(hix) All Liens relating to the Purchased Assets Xxxxx Agreement shall be in full force and effect; Xxxxx shall have been released in fullconsummated the transactions contemplated under the Xxxxx Agreement; and Xxxxx shall not have withdrawn, other than Permitted Liensor communicated its intention to withdraw or challenge, and Seller shall have delivered its proxy given thereunder to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.Parent;
(ix) Parent and Purchaser shall have received a certificateall applicable authorizations, dated the Closing Date consents, and signed by a duly authorized officer approvals of Seller, that each of the conditions set forth governments and governmental agencies referred to in Section 7.2(a3(d) and Section 7.2(b4(d) have been satisfied (the "Seller Closing Certificate").above;
(jxi) the number of Dissenting Shares shall not exceed five percent of the total Company Common Shares outstanding on the date hereof; and
(xii) all certificates, instruments and other documents required to be delivered to Parent or Purchaser hereunder or otherwise to effect the Merger shall be reasonably satisfactory in form and substance to Parent and Purchaser. Parent and Purchaser shall have received may waive any condition specified in this Section 6(a) if they execute a certificate of writing so stating at or prior to 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 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 therebyClosing.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Arvin Industries Inc)
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment satisfaction (or waiver by Parent and Purchaser’s waiver, at or prior to the Closing, of each ) of the following conditions:
(a) Other than the Seller Fundamental Representations, the representations and warranties of 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 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) Seller and each of the Unitholders Company shall have duly performed and complied with all agreementsof its obligations, covenants and conditions agreements hereunder required to be performed or complied with by this Agreement.
(c) No Action shall have been commenced against Parent, Purchaser, Seller or any of the Unitholders which would prevent the Closing.
(d) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser it at or prior to the Closing.
(e) From the date Effective Time, disregarding for these purposes any exception with respect to such obligation, covenant or agreement qualified by "Material Adverse Effect," "material," "materiality" and words of this Agreementsimilar import, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred thatexcept for such failures to perform which, individually or in the aggregate, with or without the lapse of time, could would not reasonably be expected to result in have a material adverse effect Material Adverse Effect on the Business or Company; provided, however, that for purposes of this Section 7.02(a), "Material Adverse Effect" on the Purchased Assets.Company shall mean a Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
(fb) Seller except as affected by actions specifically described in and permitted by this Agreement, the representations and warranties of the Company contained in this Agreement shall be true on and as of the closing date as if made on and as of such date (other than to the extent that any such representation and warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date), disregarding for these purposes any exception in such representation or warranty qualified by "Material Adverse Effect," "material," "materiality" and words of similar import, except for such failures to be true which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that for purposes of this Section 7.02(b), "Material Adverse Effect" on the Company shall mean a Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
(c) Parent shall have received a certificate signed on behalf of the Company by the President or Chief Executive Officer or a Vice President of the Company certifying as to the satisfaction of the conditions contained in Sections 7.02(a) and (b); and
(d) Each of the Company and its Subsidiaries shall have delivered to Parent all of the certificates, instruments and Purchaser duly executed counterparts other documents required to be delivered by such company or by any Person retained by the Company and its Subsidiaries at or prior to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c).
(g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business closing date as conducted by Seller as of the Closing Date.
(h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate").
(j) Parent and Purchaser 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 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.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated required by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Pulitzer Inc)
Conditions to Obligations of Parent and Purchaser. The obligations obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction, or Parent and the waiver at Purchaser’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 Seller Fundamental Representations, Closing Date.
(b) All of the representations and warranties of Seller the Company contained in this Agreement, the other Transaction Documents Additional Agreements and in any certificate or other writing delivered by the Company 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 effectMaterial Adverse Effect, regardless of whether it involved a known risk, shall: (i) or in all material respects (in the case of any representation or warranty not qualified by materiality or material adverse effect) on be true, correct and complete at and as of the date hereof of this Agreement (except as provided in the disclosure schedules or as provided for in Article V), or, (ii) if otherwise specified, when made or when deemed to have been made, and on (iii) be true, correct and complete as of the Closing Date Date, in the case of (i) and (ii) with only such exceptions as could not in the same effect as though made at and as of such date (except those representations and warranties that address matters only as of aggregate reasonably be expected to have a specified date, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this AgreementMaterial Adverse Effect.
(c) No Action There shall have been commenced against Parentno event, Purchaserchange or occurrence which individually or together with any other event, Seller change or any occurrence, could reasonably be expected to have a Material Adverse Effect, regardless of the Unitholders which would prevent the Closingwhether it involved a known risk.
(d) All Consents that are listed on Section 4.3(aPurchaser shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the effect set forth in clauses (a) through (c) of the Disclosure Schedules this Section 10.2.
(e) No court, arbitrator or other Authority shall have been issued any judgment, injunction, decree or order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, the ownership by Purchaser of any of the Company Capital Stock or the effective operation of the Business by the Company after the Closing Date.
(f) Purchaser shall have received copies of all required third party consents (including the consents of the landlords under the Leases), in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof no such third party consents shall have been delivered to Parent and Purchaser at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c)revoked.
(g) Purchaser shall have received copies of all Authorizations that are necessary for it Governmental Approvals, in form and substance reasonably satisfactory to conduct the Business as conducted by Seller as of the Closing DatePurchaser, and no such Governmental Approval shall have been revoked.
(h) All Liens relating Counsel to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller Company shall have delivered to Purchaser written evidence, an opinion in form and substance satisfactory to Parent and Purchaser in its sole discretion, of the release of such LiensPurchaser’s counsel.
(i) Parent and Purchaser shall have received a certificate, dated Schedules updated as of the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")Date.
(j) Parent and Purchaser The requisite majority of Parent’s shareholders 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 other Transaction Documents and the consummation of approved the transactions contemplated hereby and thereby, and that all such resolutions are by this Agreement in full force and effect and are all the resolutions adopted in connection accordance with the transactions contemplated hereby provisions of Parent’s organizational documents and therebyCayman Law.
(k) Each Seller Investor Party other than the Unitholders Purchaser shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each at least $5,000,001 of the employees of the Business whose names are included net tangible assets on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after as detailed in the Closing Datefinal prospectus from the IPO.
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate effect the transactions contemplated by this Agreement shall be Merger are also subject to the fulfillment satisfaction or waiver by Parent and Purchaser’s waiver, at or prior to the Closing, of each Closing of the following conditions:
(a) Other than the Seller Fundamental Representations, the The representations and warranties of Seller contained the Company set forth in this AgreementSection 3.2 shall be true and correct (except for inaccuracies that are de minimis in amount). The representations and warranties set forth in Sections 3.3, the other Transaction Documents 3.8, 3.11, 3.16 and any certificate or other writing delivered pursuant hereto 3.17 shall be true and correct in all respects (material respects. There shall not exist inaccuracies in the case representations and warranties of any representation the Company set forth in this Agreement (including the representations and warranties set forth in Sections 3.2, 3.3, 3.8, 3.11, 3.16 and 3.17) such that the aggregate effect of such inaccuracies has, or warranty could reasonably be likely to have, a Material Adverse Effect; provided that, for purposes of this sentence only, those representations and warranties that are qualified by materiality references to "material" or material adverse effect) or "Material Adverse Effect" shall be deemed not to include such qualifications. For purposes of this Section 6.2(a), the accuracy of the representations and warranties of the Company set forth in all material respects (in the case of any representation or warranty not qualified by materiality or material adverse effect) on and this Agreement shall be assessed as of the date hereof and on of this Agreement and as of the Closing Date with the same effect as though made at and as of such date (except those provided that representations and warranties that address matters are confined to a specified date shall speak only as of a specified such date, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders The Company shall have duly performed and complied with in all agreements, covenants and conditions material respects all obligations required to be performed by it under this Agreement.
(c) No Action shall have been commenced against Parent, Purchaser, Seller or any of the Unitholders which would prevent the Closing.
(d) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser Agreement at or prior to the Closing.
(ec) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller The Company shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreementi) and such other documents and deliveries set forth in Section 2.3(c).
(g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business as conducted by Seller a certificate, dated as of the Closing Date.
(h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser shall have received a certificate, dated the Closing Date and signed on its behalf by a duly authorized officer of Sellerofficer, to the effect that each of the conditions set forth in Section 7.2(a6.1 as relates to the Company and in Section 6.2(a) and Section 7.2(b6.2(b) have been satisfied satisfied, and (the "Seller Closing Certificate").
(jii) Parent and Purchaser 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 certified copies of all resolutions duly adopted by the board Board of directors Directors and the Company's stockholders evidencing the taking of Seller authorizing all corporate action necessary to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents Agreement, and the consummation of the Merger and the other transactions contemplated hereby herein, all in such reasonable detail as Parent and therebyits counsel shall request.
(d) No Material Adverse Effect shall have occurred and be continuing.
(e) No Distribution Date or Triggering Event (as such terms are defined in the Rights Agreement) shall have occurred, and that all such resolutions are the Rights shall not have become non-redeemable or exercisable upon consummation of the Merger.
(f) Parent shall have received an opinion of Rich, May Xxxxxxxx & Xxxxxxxx, P.C., counsel to the Company, dated as of the date of Closing, in form reasonably satisfactory to Parent, as to the matters set forth in EXHIBIT B.
(g) Those certain Amended and Restated Employment Agreements listed in Section 6.2 of the Disclosure Schedule shall be in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and therebyat Closing, without any amendments or modifications.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Core Inc)
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment satisfaction (or written waiver by Parent and Purchaser’s waiver, at or prior to the Closing, of each ) of the following conditions:
(a) Other than the Seller Fundamental Representations, Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) (i) the representations and warranties of Seller the Company contained in this AgreementAgreement that are qualified by “Material Adverse Effect” shall be true on and as of the closing date as if made on and as of such date (other than to the extent that any such representation and warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date) and (ii) the representations and warranties of the Company contained in this Agreement that are not qualified by “Material Adverse Effect” shall be true on and as of the closing date as if made on and as of such date (other Transaction Documents than to the extent that any such representation and any certificate warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date), except in the case of (ii) above for such failures to be true which, individually or other writing delivered pursuant hereto in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that notwithstanding anything to the contrary herein the representations and warranties of the Company contained in Section 4.02, 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 effectand Sections 4.03(a) 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 date4.18, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement.;
(c) No Action no event has occurred or circumstance shall have been commenced against Parentcome into existence, Purchasereither individually or in the aggregate, Seller since the date hereof that has or any of would reasonably be expected to have a Material Adverse Effect on the Unitholders which would prevent the Closing.Company;
(d) All Consents that are listed Parent shall have received a certificate signed on Section 4.3(a) behalf of the Disclosure Schedules Company by the Chief Executive Officer or Chief Financial Officer of the Company certifying as to the satisfaction of the conditions contained in Sections 7.02(a) and (b); and
(e) Parent shall have been received the opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, in form and substance reasonably satisfactory to Parent and PurchaserParent, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or prior to dated as of the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect rendered on the Business or the Purchased Assetsbasis of facts, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent representations and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 2.3(c368(a)(2)(E) of the Code. In rendering the opinion described in this Section 7.02(e).
(g) Purchaser , Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP shall have received all Authorizations that are necessary for it and may rely upon the certificates and representations referred to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser 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 7.2(a6.16(b) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")hereof.
(j) Parent and Purchaser 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 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.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Crane & Co Inc)
Conditions to Obligations of Parent and Purchaser. The obligations obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction, or Parent and the waiver at Purchaser’s waiver, at or prior to the Closingsole and absolute discretion, of each of all the following further conditions:
(a) Other than The Target Companies, the Seller Fundamental Representations, Company and the Manager shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date.
(b) All of the representations and warranties of Seller the Target Companies, the Company and the Manager contained in this Agreement, the other Transaction Documents Additional Agreements and in any certificate delivered by the Company or other writing delivered the Manager 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 knowledge, materiality or material adverse effectMaterial Adverse Effect, shall: (i) or in all material respects be true, correct and complete (in the case of any representation or warranty not qualified by materiality or material adverse effectA) on at and as of the date hereof of this Agreement, or, (B) if otherwise specified, when made or when deemed to have been made, and on (ii) be true, correct and complete as of the Closing Date Date, in the case of (i) and (ii) with only such exceptions as could not in the same effect as though made at and as of such date (except those representations and warranties that address matters only as of aggregate reasonably be expected to have a specified date, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this AgreementMaterial Adverse Effect.
(c) No Action There shall have been commenced against Parentno event, Purchaserchange or occurrence which individually or together with any other event, Seller change or any occurrence, could reasonably be expected to have a Material Adverse Effect, regardless of the Unitholders which would prevent the Closingwhether it involved a known risk.
(d) All Consents that are listed on Section 4.3(aPurchaser shall have received a certificate signed by the Target Companies, the Manager and the Company to the effect set forth in clauses (a) through (c) of the Disclosure Schedules this Section 12.2.
(e) No court, arbitrator or other Authority shall have been issued any judgment, injunction, decree or order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, the ownership by Purchaser of any of the Target Securities or the effective operation of the Business by the Target Companies after the Closing Date.
(f) Purchaser shall have received all documents it may reasonably request relating to the existence of each of the Target Companies and the authority of the Target Companies, the Company and the Manager to enter into and perform under this Agreement, all in form and substance reasonably satisfactory to Parent Purchaser and Purchaserits legal counsel, including (i) a copy of the Certificate of Incorporation, or other organizational document, of the Target and each of its Subsidiaries, certified as of a recent date by the Secretary of State of their respective jurisdictions of organization, (ii) copies of the Target Companies’ bylaws, as effective on the date hereof; (iii) copies of the bylaws, operating agreement or other governing document of each of the Target’s Subsidiaries, (iv) copies of resolutions duly adopted by the board of directors of the Target authorizing this Agreement and the approval of the Target Stockholders of the Transaction, the Additional Agreements and the transaction contemplated hereby and thereby, (v) a certificate of the board of directors of Target and the Manager of the Company certifying as to signatures of the officer(s) executing this Agreement and any certificate or document to be delivered pursuant hereto, together with evidence of the incumbency of such officers and/or Manager, and executed counterparts thereof shall have been delivered (vi) recent good standing certificates regarding the Company and each of the Target Companies from the office of the Secretary of State of each of their respective states of formation and each other jurisdiction in which any of the Target Companies is qualified to Parent and Purchaser at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c)do business.
(g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business as conducted by Seller as originals or copies of the Closing Dateorganizational record books, minute books, stock ledgers, and stock transfer books of each of the Target Companies.
(h) All Liens relating Purchaser shall be fully satisfied, in its sole discretion exercised in good faith, with the results of its and its representatives’ review of the Business, the Target Stock and the Target Companies (including any review of the capitalization, assets, processes, systems, financial condition, and prospects of the Business and the Target Companies), provided that no such review shall alter any representation or warranty of any Representing Party given hereunder or in any instrument related to the Purchased Assets transactions contemplated hereby.
(i) Purchaser shall have received copies of all Third Party Consents (including the consents of the landlords under the Leases), in form and substance reasonably satisfactory to Purchaser, and no such Third Party Consent shall have been released in fullrevoked.
(j) The Target Companies and the Manager shall have delivered to Purchaser documents satisfactory to Purchaser to evidence the release of all Liens on any Target Securities and, other than Permitted Liens, any portion of the Target Companies’ assets and Seller the filing of appropriate UCC-3 Amendment (Termination) Statements or other termination documents.
(k) Purchaser shall have delivered to received from the Company and the Manager a general release of all claims against the Target Companies and their officers, directors, employees and Affiliates (other than Purchaser written evidence, solely in connection with this Agreement and the Additional Agreements) in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such LiensPurchaser.
(il) The Key Personnel shall have executed the Confidentiality and Non-Solicitation Agreements and the same shall be in full force and effect, and the Target and the Company(to the extent it has employed anyone on behalf of any Target Company) shall have entered into Labor Agreements with each of its employees to the extent required by law, and satisfied all accrued obligations of the Target Companies applicable to its employees.
(m) Purchaser shall have received a certificate from the Target that meets the requirements of Treasury Regulation Section 1.897-2(h)(1) (“Certificate”), dated within thirty (30) calendar days prior to the Closing Date and in form and substance reasonably satisfactory to Purchaser along with written authorization for Purchaser to deliver such notice form to the IRS on behalf of the Target upon Closing.
(n) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")final Schedules.
(jo) Parent and Purchaser 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 Outstanding Permits, each of directors of Seller authorizing the execution, delivery which shall be valid 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 effect, and are all the resolutions adopted in connection with the transactions contemplated hereby and therebyno Outstanding Permit shall have been revoked.
(kp) Each Seller Investor Party other The Available Cash to the Purchaser following the Transaction Merger shall be an amount no less than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this AgreementAvailable Cash Minimum.
(mq) Each Purchaser shall have completed, and be satisfied in all respects with, the results of its ongoing due diligence investigation of the employees business, assets, operations, financial condition, contingent liabilities, prospects and material agreements of the Business whose names are included on Schedule 7.2(m) shall have accepted Target Companies and relating to the Target Companies’ assets. Purchaser’s offer satisfaction of employment and the foregoing shall be Transferred Employeesdetermined in its sole discretion.
(nr) Seller All of the principal, accrued interest and fees of the Calamos Convertible Instrument shall be paid in full by the Target.
(s) The Financial Advisory Agreement between Black Diamond Financial Group LLC and Target, dated January 1, 2010, shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Datebeen cancelled.
Appears in 1 contract
Samples: Merger and Share Exchange Agreement (BGS Acquisition Corp.)
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Parent and Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
(a) Other than the (i) The Seller Fundamental RepresentationsRepresentations shall be true and correct in all material respects as of the Closing Date (except to the extent any such representations and warranties are expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified date), without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth therein; and (ii) the other representations and warranties of Seller Sellers and the Target contained in this AgreementArticle III and Article IV, respectively, other than those described in the other Transaction Documents and any certificate or other writing delivered pursuant hereto immediately preceding clause (i), shall be true and correct in all respects (in the case of without giving effect to any representation or warranty qualified by limitation as to materiality or material adverse effectCompany Material Adverse Effect set forth 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 as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The Seller Fundamental Representations shall be true and correct in all respects on and (without giving effect to any limitation 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 to materiality or Company Material Adverse Effect set forth therein) as of that specified date date), except where the failure of such representations and warranties referenced in all respects)this clause (ii) to be true and correct would not have a Company Material Adverse Effect.
(b) Seller Sellers and each of the Unitholders Target shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement.
(c) No Action shall have been commenced against Parent, Purchaser, Seller Agreement to be performed or any of complied with by Sellers and the Unitholders which would prevent the Closing.
(d) All Consents that are listed on Section 4.3(a) of the Disclosure Schedules shall have been received in form and substance reasonably satisfactory to Parent and Purchaser, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or Target prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect or on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c).
(g) Purchaser shall have received all Authorizations that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(hc) All Liens relating to Closing of the Purchased Assets purchase by Purchaser of all of the issued and outstanding shares of Georgia C-Corporation shall have been released in full, other than Permitted Liens, occurred (or shall be occurring contemporaneously with or immediately after the Closing) as contemplated by the Georgia C-Corporation SPA.
(d) Closing of the purchase by Purchaser of all of the issued and Seller outstanding Class B Common Units of the Georgia Company shall have delivered occurred (or shall be occurring contemporaneously with or immediately after the Closing) as contemplated by the Georgia UPA.
(e) The Target or the Sellers’ Representative shall have made or tendered, or caused to be made or tendered, delivery to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.following documents:
(i) Parent all stock certificates evidencing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer and Purchaser shall have received a certificatewith any required stock transfer tax stamps affixed, dated the Closing Date if any (or in lieu thereof, an affidavit of loss and signed by indemnity satisfactory to Parent);
(ii) a duly authorized officer of Seller, that executed counterparty signature page to each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied Transaction Documents to which any Seller or the Sellers’ Representative is a party (including the "Seller Closing Certificate"Escrow Agreement).;
(jiii) Parent and Purchaser shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller and the Target, dated as of the Closing Date, certifying (A) 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 and the other Transaction Documents and the consummation of the transactions contemplated hereby and therebyhereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby hereby, (B) that each of the conditions set forth in Section 7.02(a) and thereby.Section 7.02(b) applicable to such Seller and the Target have been satisfied, (C) that each of the conditions set forth in Section 7.02(f) and Section 7.02(g) have been satisfied, and (D) the names and signatures of the officers of such Seller and the Target authorized to sign this Agreement and the other documents to be delivered hereunder;
(kiv) Each Seller Investor Party other than resignations of the Unitholders managers, partners, directors and officers of the Companies pursuant to Section 6.03;
(v) the Pay-Off Letters;
(vi) an IRS Form W-9 from each Seller;
(vii) an original IRS Form 8023 executed by the Share Seller;
(viii) evidence of the purchase by the Target, at the Sellers’ sole cost and expense, of a directors and officers insurance tail policy;
(ix) a certified statement, in a form reasonably acceptable to Purchaser, shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have been delivered to Purchaser by the Trustee setting forth the Trustee’s determination that: (A) the consideration to be received for the Shares pursuant to the terms of this Agreement is not less than the fair market value (as such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate term is used in determining “adequate consideration” under Section 3(18) of ERISA) of such Shares, (B) the transactions contemplated by this Agreement, taken as a whole, are fair to the ESOP from a financial point of view and (C) the transactions contemplated by this Agreement are prudent and in the interest of the participants and beneficiaries of the ESOP;
(x) copies of all necessary consents, waivers and approvals of parties to any Contract, and the making of all filings with all Governmental Authorities, set forth on Schedule 7.02(e)(x);
(xi) release of all termination statements in connection with the release of all Encumbrances set forth on Schedule 7.02(e)(xi) (the “Termination Statements”); provided, however, that for the avoidance of doubt, those termination statements securing Indebtedness to be satisfied at the Closing shall be filed after the Closing in accordance with the terms and conditions set forth in the Pay-Off Letters; and;
(xii) Purchaser shall have received a copy of the Fairness Opinion.
(mf) Each of the employees of the Business whose names are included on Schedule 7.2(m) No Company Material Adverse Effect shall have accepted Purchaser’s offer occurred since the date of employment this Agreement and shall be Transferred Employeescontinuing.
(ng) Seller The Trustee and the Target shall have obtained a new agreement with Pix4D for negotiated the license settlement of Pix4D software on terms satisfactory to Purchaserthe ESOP Loan Receivable and terminated the ESOP Pledge Agreement such that the ESOP Loan Receivable is, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after as of the Closing Date, cancelled or otherwise paid in full, and all Share Seller suspense account shares are, as of the Closing Date, either cancelled or allocated to ESOP participants (or some combination thereof) as agreed to by the Trustee and the Target.
(h) There shall be no pending or threatened Governmental Order or proceeding by any Governmental Authority which Purchaser in good faith reasonably believes could result in the transactions contemplated by this Agreement being restrained or prohibited or the award of damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby.
(i) April 1, 2022 shall have occurred prior to or concurrent with the Closing.
(j) The following transactions shall have occurred:
(i) the purchase by Hollandia Real Estate, LLC, a Delaware limited liability company, of the properties (land only excluding improvements) located at 1550 (also known as 1540) and 0000 Xxxxx Xxxxxx Xxxx, Carpinteria, CA 93013, and 0000 X Xxxx Xxxxxx, Xxxxxx, XX 00000, and the property (land and improvements) located at 000 Xxxx’x Xxx, Xxxxx, XX 00000, from Store Master Funding XVIII, LLC, a Delaware limited liability company (“Store”), for a purchase price not to exceed $25,812,500 (the “Store Purchase Price”); and
(ii) the termination of the Store Capital Lease (as defined in Section 4.04 of the Disclosure Schedules), that certain Unconditional Guaranty of Payment and Performance, dated as of June 30, 2020, by and between the Target and Store, each mortgage issued by a Company or Store to Citibank, N.A. in connection with the Store Capital Lease or otherwise which encumbers any interest in the Company Real Property, and any other agreements delivered by a Company in connection with the Store Capital Lease or the Store Mortgage.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Local Bounti Corporation/De)
Conditions to Obligations of Parent and Purchaser. The obligations obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction, or Parent and the waiver at Purchaser’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 Seller Fundamental Representations, Closing Date.
(b) All of the representations and warranties of Seller the Company contained in this Agreement, the other Transaction Documents and in any certificate or other writing delivered by the Company pursuant hereto shall hereto, shall: (i) be true true, correct 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 complete at and as of the date hereof of this Agreement (except as provided in the disclosure schedules or as provided for in Article V), or, (ii) if otherwise specified, when made or when deemed to have been made, and on (iii) be true, correct and complete as of the Closing Date Date, in the case of (i) and (ii) with only such exceptions as could not in the same effect as though made at and as of such date (except those representations and warranties that address matters only as of aggregate reasonably be expected to have a specified date, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this AgreementMaterial Adverse Effect.
(c) No Action There shall have been commenced against Parentno event, Purchaserchange or occurrence which individually or together with any other event, Seller change or any of the Unitholders which would prevent the Closingoccurrence, could reasonably be expected to have a Material Adverse Effect.
(d) All Consents that are listed on Section 4.3(aParent Parties shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the effect set forth in clauses (a) through (c) of this Section 10.2.
(e) No court, arbitrator or other Authority shall have issued any judgment, injunction, decree or order, or have pending before it a proceeding for the Disclosure Schedules issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, or the effective operation of the Business by the Company after the Closing Date.
(f) Parent Parties shall have received copies of all required third party consents, in form and substance reasonably satisfactory to Purchaser, and no such third party consents shall have been revoked.
(g) Parent Parties shall have received copies of all Governmental Approvals, in form and substance reasonably satisfactory to Parent and PurchaserParties, and executed counterparts thereof no such Governmental Approval shall have been delivered to Parent and Purchaser at or prior to the Closingrevoked.
(eh) From the date of this Agreement, there shall not have occurred any material adverse effect on the Business or the Purchased Assets, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 2.3(c).
(g) Purchaser Parties shall have received all Authorizations that are necessary for it to conduct the Business as conducted by Seller Schedules updated as of the Closing Date.
(hi) All Liens relating to the Purchased Assets The requisite shareholders of Parent shall have been released approved the transactions contemplated by this Agreement in full, other than Permitted Liens, accordance with the provisions of Parent’s organizational documents and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser 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 7.2(a) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")BVI Law.
(j) Parent and Purchaser The Company shall have received a certificate of completed 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 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 therebyFinancing.
(k) Each Seller Investor Party other than the Unitholders The Company shall have delivered to Parent a Lock-Up Agreement and Purchaser an Acknowledgment and Joinder Leak-Out Agreement in duly executed by the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents Stockholders owning 3% or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each greater of the employees of Company capital stock on a fully diluted basis, in form and substance reasonably acceptable to the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred EmployeesParent.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement shall be Merger are subject to the fulfillment satisfaction (or written waiver by Parent and Purchaser’s waiver, at or prior to the Closing, of each ) of the following conditions:
(a) Other than the Seller Fundamental Representations, Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) (i) the representations and warranties of Seller the Company contained in this AgreementAgreement that are qualified by “Material Adverse Effect” shall be true on and as of the closing date as if made on and as of such date (other than to the extent that any such representation and warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date) and (ii) the representations and warranties of the Company contained in this Agreement that are not qualified by “Material Adverse Effect” shall be true on and as of the closing date as if made on and as of such date (other Transaction Documents than to the extent that any such representation and any certificate warranty, by its terms, is expressly limited to a specific date, in which case such representation and warranty shall be true as of such date), except in the case of (ii) above for such failures to be true which, individually or other writing delivered pursuant hereto in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that notwithstanding anything to the contrary herein the representations and warranties of the Company contained in Section 4.02, 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 effectand Sections 4.03(a) 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 date4.18, the accuracy of which shall be determined as of that specified date in all respects). The 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) Seller and each of the Unitholders shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement.;
(c) No Action no event has occurred or circumstance shall have been commenced against Parentcome into existence, Purchasereither individually or in the aggregate, Seller since the date hereof that has or any of would reasonably be expected to have a Material Adverse Effect on the Unitholders which would prevent the Closing.Company;
(d) All Consents that are listed Parent shall have received a certificate signed on Section 4.3(a) behalf of the Disclosure Schedules Company by the Chief Executive Officer or Chief Financial Officer of the Company certifying as to the satisfaction of the conditions contained in Sections 7.02(a) and (b); and
(e) Parent shall have been received the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent and PurchaserParent, and executed counterparts thereof shall have been delivered to Parent and Purchaser at or prior to dated as of the Closing.
(e) From the date of this Agreement, there shall not have occurred any material adverse effect rendered on the Business or the Purchased Assetsbasis of facts, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a material adverse effect on the Business or the Purchased Assets.
(f) Seller shall have delivered to Parent representations and Purchaser duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 2.3(c368(a)(2)(E) of the Code. In rendering the opinion described in this Section 7.02(e).
(g) Purchaser , Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have received all Authorizations that are necessary for it and may rely upon the certificates and representations referred to conduct the Business as conducted by Seller as of the Closing Date.
(h) All Liens relating to the Purchased Assets shall have been released in full, other than Permitted Liens, and Seller shall have delivered to Purchaser written evidence, in form satisfactory to Parent and Purchaser in its sole discretion, of the release of such Liens.
(i) Parent and Purchaser 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 7.2(a6.16(b) and Section 7.2(b) have been satisfied (the "Seller Closing Certificate")hereof.
(j) Parent and Purchaser 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 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.
(k) Each Seller Investor Party other than the Unitholders shall have delivered to Parent and Purchaser an Acknowledgment and Joinder Agreement in the form attached hereto as Exhibit E.
(l) Seller shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Each of the employees of the Business whose names are included on Schedule 7.2(m) shall have accepted Purchaser’s offer of employment and shall be Transferred Employees.
(n) Seller shall have obtained a new agreement with Pix4D for the license of Pix4D software on terms satisfactory to Purchaser, including a provision that such agreement is freely assignable to Purchaser. Seller shall pay any usage fees under such new agreement through the Closing Date and Purchaser shall pay such fees after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (American Bank Note Holographics Inc)
