Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i): (a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect. (b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing. (c) Purchaser shall have delivered, or caused to be delivered, to Sellers: (i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser; (ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser; (iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied; (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto; (v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 5 contracts
Samples: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement, Master Sale and Purchase Agreement
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Transaction shall be subject to the fulfillment or written waiverwaiver by Sellers, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the Purchaser Fundamental Representations shall be true and correct in all respects at and as of the Closing. Each other representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to materiality representation or Purchaser warranty qualified by materiality, Material Adverse Effect) Effect or similar qualifications), or in all but de minimis respects (in the case of any other representation or warranty), in each case at and as of the Closing Date as if made on such date (except for such representations and warranties that speak are made as of a another specific date or time, which representations and warranties shall be required to be true and correct in all respects or in all but de minimis respects, as applicable, only as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied and satisfied all in all material respects with all agreements agreements, covenants and obligations required by this Agreement to be performed and satisfied by Purchaser at or complied with by it prior to or at the Closing.
(b) No Action shall have been commenced or threatened against Purchaser that seeks to enjoin or would prevent the Closing or would have a Purchaser Material Adverse Effect. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(c) From the date of this Agreement, there shall not have occurred any Purchaser Material Adverse Effect.
(d) Purchaser shall have delivered, or caused delivered to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions deliveries set forth in Section 7.3(a) and Section 7.3(b) are satisfied;2.2(c).
(ive) stock certificates evidencing The Transaction Documents shall have been executed and delivered by the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;parties thereto and true and complete copies thereof shall have been delivered to Sellers.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate the transactions contemplated by this Agreement are Sale Transaction shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each Closing Date of the following additional conditions; provided, however, that in no event any one or more of which may be waived by Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i(acting unanimously):
(a) Each of Parent and Merger Sub shall have performed in all material respects the covenants and obligations required to be performed by them under this Agreement on or prior to the Closing Date;
(b) The representations and warranties of Purchaser Parent and Merger Sub contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects on and as of the Closing Date Effective Time as if made on and as of such date (except for representations and warranties that speak as of expressly stated to relate to a specific date or timedate, in which case such representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with as of such earlier date, and except that the representations and warranties contained in SECTION 6.6 shall be true in all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.respects;
(c) Purchaser Each of Parent and Merger Sub shall have delivereddelivered to Sellers and to the Company a certificate, or caused to be delivered, in form and substance reasonably satisfactory to Sellers:
(i, signed by an executive officer thereof, dated the Closing Date, certifying as to the matters set forth in SECTIONS 9.3(A) Parent Warrant A (including the related warrant agreementAND 9.3(B), duly executed by Purchaser;
(iid) Each of Parent Warrant B and Merger Sub shall have delivered to each of the Sellers and to the Company a certificate, in form and substance reasonably satisfactory to the Company, signed by an executive officer thereof, dated the Closing Date, certifying that full and complete copies of the following are attached thereto: minutes of the Board of Directors and, if applicable, stockholders thereof (including or unanimous written consents of the related warrant agreement)Board of Directors and stockholders in lieu thereof) authorizing and approving this Agreement and the Contemplated Transactions, duly executed by Purchaser;
(iii) a certificate executed copies of the Certificate of Incorporation and By-laws thereof as of in effect on the date thereof, and such other documents or instruments as the Company may reasonably request in writing not less than two days prior to the Closing Date by a duly authorized representative to carry out the intent and purpose of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;this Agreement; and
(ive) stock certificates evidencing Merger Sub shall have duly provided to Sellers and the Parent SharesCompany a copy of the Certificate of Ownership and Merger to be filed by Merger Sub with the Secretary of State of Delaware at the Effective Time (the "DEFINITIVE CERTIFICATE OF MERGER"), duly endorsed which Definitive Certificate of Merger may be undated, but otherwise complete and final in blank or accompanied by stock powers duly endorsed all respects, and such Definitive Certificate of Merger shall be in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) and substance consistent with the Equity Registration Rights Agreement, duly executed by Purchaser;terms of this Agreement and reasonably satisfactory to Sellers and the Company.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Paragon Trade Brands Inc), Stock Purchase Agreement (Paragon Trade Brands Inc), Stock Purchase Agreement (Ontario Teachers Pension Plan Board)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):following:
(a) Each (i) Buyer shall have performed all of its obligations hereunder required to be performed by it in all material respects at or prior to the Closing Date, (ii) the representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement, any Transaction Agreement shall and any certificate or other writing delivered by Buyer pursuant hereto, shall, except as otherwise contemplated by this Agreement, any Transaction Agreement and any certificate or other writing delivered by Buyer pursuant hereto, be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects at and as of the Closing Date as if made on such as of that date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches expressly made as of such representations an earlier date, in which case as of the earlier date), and warranties, individually or in (iii) Buyer shall have provided to Sellers a certificate signed by its President to the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectforegoing effect.
(b) Purchaser shall have performed Buyer’s delivery of the following items to Sellers at or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, in form and substance reasonably satisfactory to Sellers:
(i) Parent Warrant A (including the related warrant agreement)Xxxx of Sale, duly executed by PurchaserBuyer;
(ii) Parent Warrant B (including the related warrant agreement)Assignment Agreement, duly executed by PurchaserBuyer;
(iii) a certificate the IP Assignment, duly executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedBuyer;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Amended Loan Agreement, duly executed by Purchaser;Buyer; and
(v) this Agreement duly executed by Buyer.
(c) Buyer’s delivery to the holders of Notes, or such other Persons as directed by Parent, at or prior to the Closing of warrants to acquire, in the aggregate, 6,000,000 shares of common stock of Excel at a price per share equal to $0.05.
(d) No litigation, dispute or Action challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall be pending or have been instituted by any Person before any court, arbitrator or Governmental Body.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Excel Corp), Asset Purchase Agreement (Calpian, Inc.)
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written such Seller’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02, Section 5.04, Section 5.07 and Section 5.08 the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01, Section 5.02, Section 5.04, Section 5.07 and Section 5.08 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.date;
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or at on the Closing.Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects;
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby;
(id) Parent Warrant A (including the related warrant agreement), Buyer shall have delivered to Sellers duly executed by Purchasercounterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.02(b);
(iie) Parent Warrant B (including the related warrant agreement)UGC shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfiedhave been satisfied (the “Buyer Closing Certificate”);
(ivf) stock certificates evidencing UGC shall have received a certificate of the Parent SharesSecretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed theretoconnection with the transactions contemplated hereby and thereby;
(vg) UGC shall have received a certificate of the Equity Registration Rights Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Ancillary Documents and the other documents to be delivered hereunder and thereunder; and
(h) Buyer shall have delivered to UGC such other documents or instruments as UGC reasonably requests and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Uncommon Giving Corp), Asset Purchase Agreement (Uncommon Giving Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated to be performed by this Agreement them in connection with the Closing are subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of the Purchaser contained set forth in ARTICLE V of this Agreement Article 4 above shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects at and as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.Closing;
(b) Purchaser shall have performed or and complied with all of its covenants hereunder in all material respects with all agreements and obligations required through the Closing;
(c) No action, suit or Proceeding shall be pending or threatened before any Court or quasi-judicial or administrative agency of any federal, state, county, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, Order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be performed rescinded following consummation (and no such injunction, judgment, Order, decree, ruling, or complied charge shall be in effect);
(d) Sellers and Purchaser shall have received all authorizations, consents, and approvals of Governmental Entities, including the TSX Venture Exchange, if required, that are necessary to consummate the transactions contemplated by this Agreement; and
(e) All actions to be taken by Purchaser in connection with by it the consummation of the transaction contemplated hereby and all agreements, including this Agreement, certificates, opinions, instruments, and other documents, including the Transaction documents, required to affect the transactions contemplated hereby will be reasonably satisfactory in form and substance, and executed and delivered, if applicable, to Sellers. Sellers may waive any condition specified in this Section 6.2 if they execute a written instrument so stating at or prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (ICTV Brands Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Other than Buyer Fundamental Representations (other than clause (c) of Section 5.03), the representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 (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 Buyer Fundamental Representations (other than clause (c) of Section 5.03) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on such date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement), Buyer shall have delivered to Sellers duly executed by Purchaser;counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have delivered to Sellers such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Sprague Resources LP)
Conditions to Obligations of Sellers. The obligations obligation of each of the Sellers to consummate effect the Closing of the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Imperial shall have furnished the Receiver on behalf of the Sellers a certificate of an officer of Imperial, dated the Closing Date, certifying on behalf of Imperial that the conditions set forth in Sections 8.02(b) and (c) have been fulfilled.
(b) Except to the extent waived hereunder, (i) the representations and warranties of Purchaser Imperial contained in ARTICLE V of this Agreement herein shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects at the Closing Date with the same effect as though made at such time; and (ii) Imperial shall have performed all material obligations and complied with all agreements and obligations material covenants required by this Agreement to be performed or complied with by it prior to or at the ClosingClosing Date.
(c) Purchaser All statutory requirements for the valid consummation by Imperial or its permitted assignees of the transactions contemplated by this Agreement shall have deliveredbeen fulfilled and all authorizations, or caused consents and approvals of all federal, state, local and foreign governmental agencies and authorities required to be deliveredobtained in order to permit consummation by Imperial or its permitted assignees of the transactions contemplated by this Agreement shall have been obtained. Between the date of this Agreement and the Closing Date, no action or proceeding shall have been instituted or, to the knowledge of Imperial or any of the Sellers:, shall have been threatened by any party (public or private) before a court or other governmental body to restrain or prohibit the transactions contemplated by this Agreement or to obtain the damages in respect thereof.
(id) Parent Warrant A (including The Courts shall have issued orders approving the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as sale of the Closing Date Acquired Assets as contemplated in this Agreement (or as otherwise approved by a duly authorized representative the Courts with the agreement of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Imperial).
Appears in 2 contracts
Samples: Purchase and Sales Agreement, Purchase and Sales Agreement (Imperial Petroleum Inc)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate the transactions contemplated by this Agreement are to be consummated at the Closing is subject to the fulfillment satisfaction (or written waiver, prior to or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the representations and warranties of Purchaser contained Buyer set forth in ARTICLE V of this Agreement Article III shall be true and correct in all material respects (disregarding except for the purpose of such determination any qualification as representations and warranties that are already qualified by their terms by a reference to materiality or Purchaser Material Adverse Effectmaterial adverse effect which representations and warranties as so qualified shall be true and correct in all respects) on and as of the Closing Date as if made on such date (as of the Closing Date, except for those representations and warranties that speak address matters only as of a specific particular date or time, (which representations and warranties shall be true and correct only as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.;
(b) Purchaser Buyer shall have performed or complied in all material respects with all its agreements and obligations covenants required by this Agreement to be performed or complied with by it under this Agreement as of or prior to or at the Closing.;
(c) Purchaser no action, suit or proceeding shall be pending by or before any Governmental Entity seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction enjoining or preventing consummation of the transactions contemplated by this Agreement shall be in effect;
(d) Buyer shall have delivereddelivered to ASI Holdings the Buyer Certificate;
(e) all applicable waiting periods (and any extensions thereof) under applicable antitrust or trade regulation laws shall have expired or otherwise been terminated;
(f) ASI Holdings shall have received a certificate of good standing of Buyer in its jurisdiction of incorporation and a certificate as to the incumbency of officers and the adoption of authorizing resolutions;
(g) Xxxxx Xxxxxxxxxxxx and Xxx Xxx shall have submitted their written resignations from the board of Directors of Buyer, or caused to be deliveredeffective as of the closing of the GGEC Transaction;
(h) Immediately prior to the Closing, Xxxxxx Xxx shall resign as Chief Executive Officer and Chief Financial Officer of Buyer and the board of directors of Buyer shall appoint, effective as of the Closing, Xxxxxxxxxx as the Chief Executive Officer and President of Buyer, and shall appoint Xxxxxxxxxx to Sellers:the board of directors of Buyer.
(i) Parent Warrant A (including GGEC shall provide its written commitment to transfer to employees of Buyer, other than Xxxxxxxxxx, and new board members of Buyer identified by Xxxxxxxxxx, warrants to purchase a total of up to 500,000 shares of Common Stock, at an exercise price of U.S. $0.75 per share; provided, however, that such warrants shall not be exercisable until Buyer shall have duly effected the related warrant agreement), duly executed by PurchaserAuthorized Shares Increase;
(iij) Parent ASI Holdings shall have received a certificate representing the Shares and the executed Warrant B (including the related warrant agreement), duly executed by Purchaserfrom Buyer;
(iii1) a certificate executed as ASI Holdings shall have received documentation reflecting the satisfaction and/or cancellation of the Closing Date by a duly authorized representative all obligations of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions Buyer set forth in Section 7.3(a) and Section 7.3(b) are satisfiedon Schedule 5.2(1);
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 2 contracts
Samples: Asset Purchase Agreement (AuraSound, Inc.), Asset Purchase Agreement (AuraSound, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers each Seller to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written such Seller’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyers contained in ARTICLE V of this Agreement Article IV that are not qualified by “material”, “materially”, “Material Adverse Effect”, “material adverse effect” or similar qualification or standard shall be true and correct in all material respects at and as of the Closing Date as of made on the Closing Date (disregarding for except to the purpose extent expressly made as of another date, in which case as of such determination any qualification as to materiality or Purchaser other date).
(b) The representations and warranties of Buyers contained in Article IV of this Agreement that are qualified by “material”, “materially”, “Material Adverse Effect) ”, “material adverse effect” or similar qualification or standard shall be true and correct in all respects at and as of the Closing Date as if made on such date the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches expressly made as of another date, in which case as of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectother date).
(bc) Purchaser Each Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(cd) Purchaser Sellers shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed dated as of the Closing Date and signed by a duly authorized representative officer of Purchasereach Buyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.3(a), Section 6.3(b) and Section 7.3(b6.3(c) are has been satisfied;.
(ive) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of each Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the managers and members of such Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby.
(vf) Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Buyer certifying the names and signatures of the officers of such Buyer authorized to sign this Agreement and the other documents to be delivered hereunder.
(g) NC-31 Buyer shall have delivered to NC-31 Seller cash in an amount equal to the sum of (x) the Equity Registration Rights AgreementNC-31 Closing Payment less (y) the NC-31 Holdback Amount, duly executed by Purchaser;wire transfer in immediately available funds, to an account or accounts designated at least two (2) Business Days prior to the Closing Date by NC-31 Seller in a written notice to NC-31 Buyer.
(h) NC-47 Buyer shall have delivered to NC-47 Seller cash in an amount equal to the sum of (x) the NC-47 Closing Payment less (y) the NC-47 Holdback Amount, by wire transfer in immediately available funds, to an account or accounts designated at least two (2) Business Days prior to the Closing Date by NC-47 Seller in a written notice to NC-47 Buyer.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (VivoPower International PLC)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(ai) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.1 and Section 4.6, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Agreements and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.1 and Section 4.6 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(bj) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to which Buyer is a party to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(k) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(l) All necessary FINRA approvals, consents and waivers shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(cm) Purchaser The Ancillary Agreements shall have delivered, or caused to be delivered, been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(in) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are have been satisfied;.
(ivo) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vp) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Ancillary Agreements and the other documents to be delivered hereunder and thereunder.
(q) Overstock shall have instructed its transfer agent to issue to Sellers the Shares having a market value equal to the Purchase Price in accordance with this Agreement.
(r) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (OVERSTOCK.COM, Inc), Membership Interest Purchase Agreement (OVERSTOCK.COM, Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Between the date hereof and the Closing, there shall be no Material Adverse Effect in the operations or condition of Buyer’s assets or the financial condition or liabilities (as reflected in the Buyer Financial Statements or otherwise) of Buyer other than such expenditures, business arrangements and changes in operations as mutually agreed by the parties prior to Closing and as provided in this Agreement. Between the date hereof and the Closing, there shall not have occurred any Material Adverse Effect with respect to Buyer, nor shall any event or events have occurred that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect with respect to Buyer.
(b) The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant to this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the date of Closing Date with the same effect as if though made on such at and as of the date of Closing (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(bc) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents, to be performed or complied with by it prior to or on the date of Closing; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(d) All executed approvals, consents and waivers that are listed on Schedule 8.2 shall have been received, and shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser The other Transaction Documents shall have delivered, or caused to be delivered, been executed and true and complete copies shall have been delivered to Sellers:.
(if) Parent Warrant A (including Sellers shall have received a certificate, dated the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as date of the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a11.3(b) and Section 7.3(b11.3(c) are have been satisfied;.
(ivg) Sellers shall have received a certificate of the duly authorized officer of the Buyer certifying that attached are true and complete copies of all resolutions adopted by the governing committee of Buyer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the contemplated transactions, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the contemplated transactions.
(h) Sellers shall have received a certificate of the duly authorized officer of the Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered under this Agreement.
(i) Buyer shall have delivered to Sellers a good standing certificate (or its equivalent) for Buyer from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which Buyer is organized and any jurisdiction in which it is qualified to conduct business.
(j) Buyer shall have delivered to Sellers stock certificates evidencing for the Parent Shares, duly endorsed Shares referenced in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Section 3(a).
Appears in 2 contracts
Samples: Option Agreement (Sara Creek Gold Corp.), Option Agreement (Sara Creek Gold Corp.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement are hereby is subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):writing by Sellers:
(a) Each of the (i) The representations and warranties of Purchaser contained Acquiror set forth in ARTICLE V of this Agreement Sections 4.1, 4.2 and 4.3(a)(ii) shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects as of the Closing Date date of this Agreement and as of the Closing, as if made on such date anew at and as of that time (except for with respect to representations and warranties that speak as of a specific date or timeto an earlier date, which representations and warranties shall be true and correct only at and as of such earlier date) and (ii) the other representations and warranties of Acquiror contained in this Agreement shall be true and correct (without giving effect to any materiality or “material adverse effect” qualifications therein) as of the date or timeof this Agreement and as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except to the extent that for, in each case, any breaches failures of such representations and warranties, individually or in the aggregate, have not had, or warranties to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effectmaterial adverse effect on the ability of Acquiror to consummate the Transactions.
(b) Purchaser Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closingrespects.
(c) Purchaser Acquiror shall have delivered to Sellers a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.3(a) and Section 8.3(b) have been satisfied
(d) Acquiror shall has delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of at the Closing Date by a duly authorized representative of Purchaserwill deliver, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions deliverables set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;2.4.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Conditions to Obligations of Sellers. The obligations obligation of ------------------------------------ Sellers to consummate the transactions contemplated by this Agreement are Transaction is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement and Graphic shall be true and correct (disregarding for in all material respects as of, and shall not have been violated in any material respect at, the purpose of such determination any qualification Closing as to materiality or Purchaser Material Adverse Effect) though made on and as of the Closing Date as if made Closing; Purchaser and Graphic shall, on such date (except for representations or before the Closing, have performed in all material respects all of its obligations under this Agreement which by the terms hereof are to be performed on or before the Closing; and warranties that speak Purchaser and Graphic shall have delivered to Sellers a certificate of one of its officers dated as of a specific the date or time, which representations and warranties shall be true and correct only as of such date or time), except the Closing to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectforegoing effect.
(b) Purchaser No action or proceeding by or before any court or other governmental body shall have performed been instituted by any governmental body or complied other person or entity or threatened in all writing which seeks to restrain, prohibit or invalidate the Transaction or which would have a material respects adverse effect on the right of Sellers to consummate the Transaction or which claims material damages from Sellers with all agreements and obligations required by this Agreement respect to be performed or complied with by it prior to or at the ClosingTransaction.
(c) Purchaser shall have delivereddelivered to Sellers a certificate of its Secretary certifying as to the requisite corporate and other action authorizing the Transaction, or caused and the incumbency of its officers.
(d) Purchaser shall have entered into the Employment Agreement, substantially in the form of Exhibit B hereto. ---------
(e) Purchaser shall have entered into the Consulting Agreement, substantially in the form of Exhibit A hereto. ---------
(f) Purchaser and Graphic shall have executed and delivered to be deliveredSellers the Escrow Agreement, substantially in the form of Exhibit C hereto. ---------
(g) Sellers shall have received the opinion of Powell, Goldstein, Xxxxxx & Xxxxxx, counsel to Purchaser and Graphic, in form and substance satisfactory to Sellers:.
(ih) Parent Warrant A (including Purchaser shall have satisfied or assumed all amounts owed by the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser Sellers to Mercantile Safe Deposit and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blankTrust Company and, in proper form for transferthe event of an assumption, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Purchaser shall have secured all necessary third party consents to such assumption.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Graphic Industries Inc), Asset Purchase Agreement (Graphic Industries Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyers contained in ARTICLE V of this Agreement and any certificate delivered by Buyers pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Each Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it such Buyer prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, such Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser Each Buyer shall have delivereddelivered to Sellers duly executed counterparts to the Transaction Documents to which such Buyer is a party (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(d) Buyers shall have delivered the Purchase Price, or caused to be deliveredless the Escrow Amount, to Sellers:Sellers pursuant to Section 2.06(a).
(ie) Parent Warrant A (including Buyers shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 2.06(b), duly executed by Purchaser;.
(iif) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyers, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a3.05(a) and Section 7.3(b3.05(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivg) stock certificates evidencing Sellers shall have received a certificate of an officer of each Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the Parent Sharesboard of directors of Buyers authorizing the execution, duly endorsed delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) connection with the Equity Registration Rights transactions contemplated hereby and thereby and certifying the names and signatures of the officers of Buyers authorized to sign this Agreement, duly executed by Purchaser;the Transaction Documents and the other documents to be delivered hereunder and thereunder.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Standard Motor Products Inc), Stock and Asset Purchase Agreement (General Cable Corp /De/)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Seller Parent’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyers contained in ARTICLE V Section 5.01, Section 5.02 and Section 5.04, the representations and warranties of Buyers contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyers contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyers shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyers shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement), Buyers shall have delivered to Sellers duly executed by Purchaser;counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(iie) Buyer Parent Warrant B (including shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.02(c), duly executed by Purchaser;.
(iiif) Seller Parent shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer Parent, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;has been satisfied (the “Buyer Parent Closing Certificate”).
(ivg) stock certificates evidencing Seller Parent shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer Parent Sharescertifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vh) Seller Parent shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer Parent certifying the names and signatures of the officers of Buyer Parent authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(i) Buyer Parent shall have delivered to Seller Parent such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 2 contracts
Samples: Master Purchase Agreement (Emcore Corp), Master Purchase Agreement (Emcore Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are with respect to the Initial Closing shall be subject to the fulfillment satisfaction or written waiver, waiver by the Seller Representative at or prior to or at the Closing, Initial Closing Date of each of the following conditions:
(a) The representations and warranties of Purchaser contained herein and in the Purchaser Representations Certificate shall have been accurate, true and correct in all material respects (except that all such representations and warranties that are qualified by Purchaser Material Adverse Effect shall be accurate, true and correct in all respects) on and as of the date hereof; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement Sections 5.1, 5.2, 5.7 and 5.9 (except with regard to breaches or claims previously asserted by Purchaser, including as to Loss Contingencies and indemnification claims) shall also be accurate, true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date in all material respects (except for that all such representations and warranties that speak as of a specific date or time, which representations and warranties are qualified by Purchaser Material Adverse Effect shall be accurate, true and correct only in all respects) on and as of such date or time), except to the extent that any breaches Initial Closing Date with the same force and effect as though made by Purchaser on and as of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse EffectInitial Closing Date.
(b) Purchaser shall have performed or and complied in all material respects with all agreements of its covenants and obligations required by contained in this Agreement to be performed or and complied with by it on or prior to or at the ClosingInitial Closing Date.
(c) Purchaser shall have delivereddelivered to the Seller Representative a certificate of Purchaser dated as of the Initial Closing Date, signed by a senior officer of Purchaser, certifying as to compliance with Sections 7.3(a) and 7.3(b).
(d) Purchaser shall have obtained the release or caused termination of all BellSouth Guarantees relating to the Initial Acquired Companies unless Sellers, in their sole discretion, shall have consented to the failure to obtain the release or termination of the BellSouth Guarantees relating to the Initial Acquired Companies, in which case Purchaser shall indemnify Sellers pursuant to Section 10.3(c) from and against any liabilities or obligations of Sellers or their Affiliates arising out of or related to any payments made by a BellSouth Entity pursuant to a BellSouth Guarantee following the Closing.
(e) Purchaser shall have paid all amounts required in connection with the termination of the Technical Services Agreements with respect to the Initial Acquired Companies in conformity with Section 6.21.
(f) Purchaser shall have delivered to the Seller Representative evidence in form and substance reasonably satisfactory to Seller Representative to the effect that the amounts owed or payable with respect to all Pay-Off Debt of any Initial Acquired Company required to be deliveredsatisfied, paid, discharged or acquired pursuant to Sellers:Section 6.7(a) have been satisfied, paid, discharged or acquired in full and such creditor(s) shall have no further claims or rights in connection therewith.
(g) Solely with respect to the Closing of the transactions contemplated in this Agreement in respect of Xxxx Holdings or any successor Holding Company formed to hold (i) Parent Warrant A (including the related warrant agreement)Peruvian Acquired Company, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement)Uruguayan Acquired Company, duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of PurchaserColombian Acquired Company, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent SharesNicaraguan Acquired Company, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Venezuelan Acquired Company, and (vi) if Seller so elects, in its sole discretion, any other Acquired Company, all conditions to Closing set forth in Sections 7.1, 7.2 and 7.3 shall have been satisfied or waived in respect of all of the foregoing Acquired Companies.
(h) Since the date of this Agreement, duly executed by Purchaser;there shall not have occurred any event or development that has had or that would reasonably be expected to have a Material Adverse Effect, provided, however, that this condition shall be deemed to be satisfied and waived in the event that Purchaser waives and releases its rights as to any indemnity or other claim against Sellers or the BellSouth Entities with respect to such Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Telefonica Mobile Inc), Stock Purchase Agreement (Telefonica S A)
Conditions to Obligations of Sellers. The obligations obligation of Sellers ------------------------------------ to consummate effect the sale of the Purchased Assets and the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Assets contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of the Purchased Assets contemplated herein shall have been issued and remain in effect (each Party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Assets;
(c) Sellers shall have received all of Sellers' Required Regulatory Approvals in form and substance reasonably satisfactory (including no unduly burdensome conditions) to Sellers;
(d) Sellers shall have obtained all of the consents and approvals for the consummation of the sale of the Purchased Assets listed on Schedule 7.2(d);
(e) Buyer shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(f) The representations and warranties of Purchaser contained Buyer set forth in ARTICLE V of this Agreement and in the Additional Agreements shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects as of the Closing Date as if though made on such date (except for representations at and warranties that speak as of the Closing Date;
(g) Sellers shall have received a specific date certificate from an authorized officer of Buyer, dated the Closing Date, to the effect that, to such officer's Knowledge, the conditions set forth in Sections 7.2(e) and (f) have been satisfied by Buyer;
(h) Buyer shall have assumed, as set forth in Section 6.10 and subject to the terms and conditions of the IBEW Memorandum of Understanding, all of the applicable obligations under the IBEW Collective Bargaining Agreement as they relate to Transferred Union Employees;
(i) Sellers shall have received an opinion from Buyer's counsel reasonably acceptable to Sellers, dated the Closing Date and satisfactory in form and substance to Sellers and their counsel, substantially to the effect that:
(i) Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the state of Delaware and is qualified to do business in the Commonwealth of Pennsylvania and has the full power and authority to execute and deliver this Agreement and the Additional Agreements and to consummate the transactions contemplated hereby and thereby; and the execution and delivery by Buyer of this Agreement and the Additional Agreements and the consummation of the transactions contemplated thereby have been duly authorized by all necessary action required on the part of Buyer;
(ii) This Agreement and the Additional Agreements have been duly and validly executed and delivered by Buyer, and constitute valid and binding agreements of Buyer, enforceable against Buyer in accordance with their terms, except that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or timeother similar laws affecting or relating to enforcement of creditor's rights generally and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity);
(iii) The execution, which representations delivery and warranties shall be true performance of this Agreement and correct only the Additional Agreements by Buyer does not (A) conflict with the articles of organization or by-laws (or other organizational documents), as currently in effect, of Buyer or (B) to the Knowledge of such date counsel, constitute a violation of or time), except default under any agreements and instruments which are material to the extent that any breaches business or financial condition of such representations Buyer;
(iv) The Assignment and warrantiesAssumption Agreement and other transfer instruments described in Section 3.7 are in proper form for Buyer to assume the Assumed Liabilities; and
(v) No consent or approval of, individually or in the aggregate, have not hadfiling with, or would notice to, any Governmental Authority is necessary for Buyer's execution and delivery of this Agreement and the Additional Agreements or the consummation by Buyer of the transactions contemplated hereby and thereby, other than such consents, approvals, filings or notices, which, if not reasonably be expected to haveobtained or made, a Purchaser Material Adverse Effectwill not prevent Buyer from performing its obligations under the Agreement and the Additional Agreements.
(bj) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser Buyer shall have delivered, or caused to be delivered, to Sellers:Sellers at the Closing, Buyer's closing deliveries described in Section 3.7; and
(ik) Parent Warrant A (including the related warrant agreement)There shall not be any injunction, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement)judgment, duly executed by Purchaser;
(iii) a certificate executed as decree, order, ruling or Law in effect preventing consummation of any of the Closing Date transactions contemplated by this Agreement or the Additional Agreements, except as shall not have a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Material Adverse Effect.
Appears in 2 contracts
Samples: Asset Purchase Agreement (WPS Resources Corp), Asset Purchase Agreement (WPS Resources Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser contained in ARTICLE V of this Agreement Article III shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date as if made on except where the failure of such date (except for representations representation and warranties that speak as of a specific date or time, which representations and warranties shall to be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Purchaser Material Adverse Effect.;
(b) Purchaser shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Related Documents to be performed or complied with by it prior to or at on the Closing.Closing Date;
(c) Purchaser shall have delivereddelivered to CEGP and CELP the allocated portion of the Closing Payment, as set forth on Schedule 1.2 in immediately available funds pursuant to wire transfer instructions provided by CEGP and CELP at least three (3) Business Days prior to the Closing Date;
(d) The Warrant Purchasers shall have delivered the purchase price for the Warrants set forth therein to CELP;
(e) Purchaser shall have delivered on behalf of CEGP to each Person set forth on Schedule 5.7 the Management Payment to which he is entitled according to Schedule 5.7, in immediately available funds pursuant to wire transfer instructions provided by such Person at least three (3) Business Days prior to the Closing Date;
(f) Purchaser shall have delivered to Sellers, or caused to be delivered, delivered to Sellers, each of the following documents, duly executed by the applicable Persons:
(i) Parent Warrant A (including the related warrant agreement), duly executed by PurchaserAll Purchaser Required Consents as listed on Schedule 3.2;
(ii) Parent Warrant B (including the related warrant agreement), duly The Amended Registration Rights Agreement executed by Purchaser;
(iii) a certificate The Warrants executed as of by the Warrant Purchasers;
(g) Sellers shall have received certificates, dated the Closing Date and signed by a duly authorized representative officer of Purchaser, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.3(a) and Section 7.3(b6.3(b) are have been satisfied;
(ivh) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary of Purchaser certifying that attached thereto are true and complete copies of all resolutions adopted by the managers of Purchaser authorizing the execution, duly endorsed delivery and performance of this Agreement and the Related Documents and the consummation of the Transactions and that all resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the Transactions; and
(vi) Sellers shall have received a certificate of the Equity Registration Rights Secretary of Purchaser certifying the names and signatures of the officers of Purchaser authorized to sign this Agreement, duly executed by Purchaser;the Related Documents and the other documents to be delivered hereunder and thereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CEGP Acquisition, LLC), Purchase and Sale Agreement (Central Energy Partners Lp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by PurchaserXxxxxxxxx;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by PurchaserXxxxxxxxx;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by PurchaserXxxxxxxxx;
Appears in 2 contracts
Samples: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01and Section 4.03, the representations and warranties of Buyer contained in this Agreement Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.03 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, prohibits any material transaction contemplated hereby.
(d) The Transaction Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(ie) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of Purchaserthe Buyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03 (a) and Section 7.3(b7.03 (b) are have been satisfied;.
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Buyer shall have delivered to Sellers (i) cash in an amount equal to the Closing Date Payment by wire transfer in immediately available funds, to an account or accounts designated at least two Business Days prior to the Closing Date by Sellers in a written notice to Buyer, (ii) the Equity Registration Rights Stock Consideration, and (iii) the Sellers Note.
(h) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (1606 Corp.), Membership Interest Purchase Agreement (1606 Corp.)
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written the Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such date or timethat specified date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements and obligations covenants required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser Buyer shall have delivered, or caused delivered to be delivered, the Sellers duly executed counterparts to Sellers:the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.2(b).
(id) Parent Warrant A (including Buyer shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.2(c), duly executed by Purchaser;.
(iie) Parent Warrant B (including the related warrant agreement)The Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing The Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying (1) copies of the certificate of incorporation and by-laws; (2) copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blankconnection with the transactions contemplated hereby and thereby; and (3) the names and signatures of the officers of Buyer authorized to sign this Agreement, in proper form for transfer, including any required stamps affixed thereto;the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(vg) RLH shall have executed and delivered the Equity Registration Rights guarantee with respect to Buyer’s obligations under this Agreement in the form agreed by RLH and Sellers.
(h) Buyer shall have delivered to the Sellers such other documents or instruments as the Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Red Lion Hotels CORP)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement hereby are subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):writing by Sellers:
(a) (i) Each of the representations and warranties of Purchaser Acquiror contained in ARTICLE V Section 4.1, Section 4.2, Section 4.6 and Section 4.9 (interpreted without giving effect to any limitation or qualification based on materiality, material adverse effect or other terms of this Agreement similar import or effect) shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects as of the Closing Date Closing, as if made on such date anew at and as of that time (except for with respect to any such representations and warranties that speak as of a specific date or timeto an earlier date, which representations and warranties shall be true and correct only in all material respects at and as of such date earlier date), and (ii) each of the other representations and warranties of Acquiror contained in this Agreement (interpreted without giving effect to any limitation or timequalification based on materiality, material adverse effect or other terms of similar import or effect) shall be true and correct as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, case of this clause (ii) for any inaccuracy or omission that would not reasonably be expected to have, have a Purchaser Material Adverse Effectmaterial adverse effect on Acquiror’s ability to consummate the transactions contemplated thereby.
(b) Purchaser Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closingrespects.
(c) Purchaser Acquiror shall have delivereddelivered to Sellers a certificate signed by an officer of Acquiror, or caused to be delivereddated the Closing Date, certifying that, to Sellers:the knowledge and belief of such officer, the conditions specified in Section 8.3(a) and Section 8.3(b) have been satisfied.
(d) Acquiror shall have delivered to Sellers a tax transfer form (formulaire cerfa n°2759 DGI) duly executed by Acquiror and reflecting such transfer by Xxxxxxxx Investments to Acquiror of all of the shares of Xxxxxxxx France for that portion of the Purchase Price allocated to such shares pursuant to Schedule 7.2.
(e) Acquiror shall have delivered to Sellers (i) Parent Warrant A (including the related warrant agreement), a release duly executed by Purchaser;
Acquiror and otherwise substantially in the form of Exhibit E attached hereto (the “Acquiror Release”), and (ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser certificates and not in such authorized representative’s individual capacity, certifying that the conditions set forth in other documents required to be delivered pursuant to Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;2.4.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Conditions to Obligations of Sellers. Each and every obligation ------------------------------------ of Sellers, Stockholders and TV Stockholder to be performed at the Closing shall be subject to the satisfaction as of or before such time of the following conditions (unless waived in writing by Sellers, Stockholders and TV Stockholder):
(a) The obligations representations and warranties of Sellers Purchaser and HK are true on the date of the Closing, and Purchaser and HK shall be in compliance with all covenants required to be complied with as of the Closing.
(b) Purchaser shall have obtained all consents and approvals (including consents from governmental authorities) required to consummate the transactions contemplated by this Agreement are subject to and the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the ClosingRelated Agreements.
(c) Purchaser and HK shall have delivered, or caused delivered to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) Sellers a certificate executed as by each of them, dated the date of the Closing Date by a duly authorized representative of PurchaserClosing, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying to the effect that the conditions set forth in Section 7.3(asubsections (a) and (b) of this Section 7.3(b) are 7.2 have been satisfied;.
(ivd) stock certificates evidencing There shall be no pending or threatened lawsuit challenging the Parent SharesAcquisition, duly endorsed the Agreement, the Related Agreements or the transactions contemplated hereby and thereby, by any body or agency of the federal, state, or local government or by any third party, and the consummation of the transaction shall not have been enjoined by a court of competent jurisdiction as of the Closing.
(e) The form and substance of all certificates, instruments, assumptions, opinions, and other documents delivered or to be delivered to Sellers under this Agreement shall be satisfactory to Sellers and its counsel in blank all reasonable respects.
(f) Sellers shall have received fully executed copies of each of the Related Agreements to which he, she or accompanied by stock powers duly endorsed it is a party.
(g) An opinion of counsel for Purchaser and HK, satisfactory to Sellers, as to matters usual in blankan acquisition transaction of this type.
(h) Purchaser and each of Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx shall have entered into an Employment Agreement, dated as of the date hereof, in proper form for transfer, including any required stamps affixed thereto;the forms attached hereto as Exhibit E. ---------
(vi) There shall have occurred no material adverse change in the Equity Registration Rights Agreementfinancial condition, duly the business of Purchaser or HK which adversely affects the conduct of the its business as presently being conducted, or the financial condition of Purchaser or HK since September 30, 1996.
(j) Completion of "due diligence" investigation by Sellers, Stockholders and their representatives, the results of which are satisfactory to Sellers in their sole discretion and which, inter alia, reveal no material adverse conditions or material adverse changes in HK or Purchaser prior to the Closing.
(k) Purchaser shall have delivered to Sellers an agreement assuming the Assumed Liabilities in form and substance reasonably satisfactory to Sellers.
(l) Purchaser shall have executed by Purchaser;the Technology License.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hall Kinion & Associates Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the 6.3.1 The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Article IV that are qualified by materiality shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of that specified date), and the representations and warranties that are not so qualified by materiality shall be true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date or time), (except to the extent that any breaches of such those representations and warrantieswarranties that address matters only as of a specified date, individually or which shall be true and correct in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall material respects as of that specified date).
(b) Purchaser 6.3.2 Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser 6.3.3 Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including , the related warrant agreement), duly following documents each properly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed applicable parties and dated as of the Closing Date (unless an earlier date is agreed to between Buyer and Sellers), in form and substance reasonably acceptable to Sellers: Stock Purchase Agreement - 59
6.3.3.1 A certificate signed by a duly authorized representative officer of Purchaser, on behalf Buyer that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(aSections 6.3.1 and 6.3.2 have been satisfied.
6.3.3.2 A certificate of the Secretary (or equivalent officer) of Buyer certifying (a) that attached thereto are true and Section 7.3(b) complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are satisfied;
in full force and effect and are all the resolutions adopted by the board of directors of Buyer in connection with the transactions contemplated hereby, and (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(vb) the Equity Registration Rights Agreementnames and signatures of the officers of Buyer authorized to sign this Agreement and the other documents to be delivered hereunder on behalf of Buyer.
6.3.3.3 A certificate of the Secretary (or equivalent officer) of Tredegar certifying that (a) attached thereto are true and complete copies of all resolutions adopted by the board of directors of Tredegar approving this Agreement and the consummation of the transactions contemplated hereby, duly executed by Purchaser;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 (b) that all consents and other actions required pursuant to the Credit Agreement and Pledge and Security Agreement dated March 1, 2016 between Tredegar and JPMorgan Chase Bank, National Association have been obtained or performed.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date hereof and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects, or true and correct in all material respects, as applicable, as though made at and as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement that were to be performed or complied with by it Buyer prior to or on the Closing Date (other than the obligations set forth at Section 2.03(c) which shall be performed on the ClosingClosing Date); provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser The other Transaction Documents shall have deliveredbeen executed and delivered by Buyer and Guarantor, or caused to be deliveredas applicable, and true and complete copies thereof shall have been delivered to Sellers:.
(id) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed dated as of the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.03(a) and Section 7.3(b8.03(b) are have been satisfied;.
(ive) stock certificates evidencing Sellers shall have received a certificate of a duly authorized officer of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by Buyer’s board of directors, board of managers or similar governing body authorizing the Parent Sharesexecution, duly endorsed delivery and performance of this Agreement and the other Transaction Documents to which Buyer is or will be a party and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vf) Buyer shall have delivered to Sellers a good standing certificate for Buyer from the Equity Registration Rights Secretary of State of the State of Delaware.
(g) Buyer shall have delivered to Sellers such other documents or instruments as Seller Representative reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Purchaser;.
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Conditions to Obligations of Sellers. The obligations of Sellers and Xxxx to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ and Xxxx’x waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.1, Section 5.2 and Section 5.4, the representations and warranties of Buyer contained in this Agreement Agreement, the Transaction Document and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.1, Section 5.2 and Section 5.4 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement), Buyer shall have delivered to Sellers duly executed by Purchaser;counterparts to the Transaction Documents and such other documents and deliveries set forth in Section 3.2(b).
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative of Purchaser, officer on behalf of Purchaser and not in such authorized representative’s individual capacityBuyer, certifying that each of the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) on behalf of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the Equity Registration Rights transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the The representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall Buyer be true and correct in all respects (disregarding for the purpose of such determination without regard to any qualification as qualifications or references to materiality or Purchaser Material Adverse Effect) , “material”, or any other materiality qualifications references contained in any specific representation or warranty), in each case on and as of the Effective Date and the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to where the extent that any breaches failure of such representations and warrantieswarranties to be so true and correct would not, individually or in the aggregate, have not had, constitute or would not reasonably be expected to have, result in a Purchaser Material Adverse Effect. Sellers hereby acknowledge that Buyer shall have the right to update any representation and warranty given pursuant to Article V herein at any time after the Effective Date through an update to the Disclosure Schedules, any such update a “Buyer’s Disclosure Schedule Update.” If the Closing occurs, any such representation and warranty shall be amended by such Buyer Disclosure Schedule Update.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) All deliveries required to be made at Closing by Buyer pursuant to Section 2.04(a) shall have been made.
(d) All approvals, consents and waivers that are listed on Section 5.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser Sellers shall have deliveredreceived evidence of the procurement by Buyer of a Directors and Officers insurance tail of no less than 6 years covering the Company’s officers and directors, or caused to the cost of which shall be delivered, to Sellers:borne by Buyer.
(if) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(aSections 7.03(a) and Section 7.3(b(b) are have been satisfied;.
(ivg) stock certificates Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(h) Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(i) Buyer shall have delivered a certificate evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;Buyer Shares to the Escrow Agent.
(vj) the Equity Registration Rights AgreementSellers shall have received evidence of termination of that certain Guaranty dated April 7, duly executed 2022 by Purchaser;Mxxxx Xxxxxxx in favor of The CIT Group/Commercial Services, Inc.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Other than the representations and warranties of Buyer contained in Section 6.01, Section 6.02 and Section 6.04, Each of the representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 6.01, Section 6.02 and Section 6.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) All approvals, consents and waivers that are listed on Section 6.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(cd) Purchaser Buyer shall have delivered, or caused delivered to be delivered, Sellers duly executed counterparts to Sellers:the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(ie) Parent Warrant A (including Buyer shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.02(c), duly executed by Purchaser;
(iif) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.03(a) and Section 7.3(b8.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivg) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or comparable governing authority of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vh) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed by Purchaser;the Transaction Documents and the other documents to be delivered hereunder and thereunder.
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Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(ai) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE Article V of this Agreement shall be (other than those representations and warranties referenced in clause (ii) below) are true and correct in all respects (disregarding for any materiality qualifications set forth therein) on and as of the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) date hereof and on and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which are true and correct in all respects as of that specified date), except where failure of such representations and warranties shall to be true and correct only has no material adverse impact on Buyer’s ability to consummate the transactions contemplated hereby and (ii) the representations and warranties contained in Section 5.01 and Section 5.04 are true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date or time), (except to the extent that any breaches of such those representations and warrantieswarranties that address matters only as of a specified date, individually or which are true and correct in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall respects as of that specified date).
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser The Transaction Documents (other than this Agreement) shall have deliveredbeen executed and delivered by Buyer and the Companies, or caused to be deliveredas applicable, and true and complete copies thereof shall have been delivered to Sellers:’ Representative.
(id) Parent Warrant A (including the related warrant agreement)Seller shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.03(a) and Section 7.3(b8.03(b) are have been satisfied;.
(ive) stock certificates evidencing Buyer shall have delivered to Sellers’ Representative the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;Closing Cash Consideration.
(vf) Buyer shall have delivered to Sellers’ Representative the Equity Registration Rights Common Stock Consideration.
(g) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sterling Construction Co Inc)
Conditions to Obligations of Sellers. (a) The obligations of Sellers to sell the Sale Shares and to consummate the transactions contemplated by this Agreement other Transactions on the Closing Date are subject to the fulfillment satisfaction, or written waiverwaiver in writing by the Sellers’ Agents in their sole discretion, on or prior to or at the ClosingClosing Date, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(ai) Each of the representations and warranties of Parent and Purchaser contained in ARTICLE V this Agreement, made as if none of this Agreement such representations or warranties contained any qualification or limitation as to “materiality,” shall be have been true and correct (disregarding for on the purpose date of such determination any qualification as to materiality or Purchaser Material Adverse Effect) this Agreement, and on and as of the Closing Date as if made on such date and as of the Closing Date (except for representations and warranties that speak as of where such representation or warranty speaks by its terms to a specific date or timedifferent date, in which representations and warranties case it shall be true and correct only as of such date or timedate), except to where the extent that any breaches failure of such representations and warrantieswarranties to be true and correct as so made does not have and is not, individually or in the aggregate, reasonably likely to have a material adverse effect on the financial condition, Assets, Liabilities, results of operation or business of Parent and Purchaser taken as a whole or on the ability of Parent and Purchaser to perform their material obligations under any Transaction Document; Parent and Purchaser shall have performed and complied, in all material respects, with all and shall not hadbe in material breach or default under any, agreements, covenants, conditions or obligations contained in this Agreement that are required to be performed or complied with on or prior to the Closing Date;
(ii) Parent and Purchaser shall have delivered to Sellers’ Agent a certificate of Parent and Purchaser, as applicable, dated the Closing Date, to the effect of the foregoing clause (i) above;
(iii) (A) no order or injunction shall have been issued by a Governmental Authority that restrains, restricts, enjoins, prevents, prohibits, imposes substantial damages, costs or penalties or otherwise makes illegal the consummation of any of the transactions contemplated by this Agreement or that adversely affect Purchaser’s ownership of the Sale Shares following the Closing; (B) no material action, suit, proceeding or investigation relating to this Transaction shall have been instituted by a Governmental Authority that the Parties reasonably determine is likely to restrain, restrict, enjoin, prevent or prohibit, or otherwise make illegal any of the transactions contemplated by this Agreement or that is likely to materially adversely affect Sellers; (C) no Law shall have been promulgated, adopted, enacted or entered into force or otherwise made effective by any Governmental Authority that has or would not have such effect; and (D) no Law shall be reasonably likely to be expected promulgated, adopted, enacted or entered into force or otherwise be made effective by any Governmental Authority that would have such effect;
(iv) the Regulatory Approvals set forth in Section 6.3 of the Purchaser Disclosure Schedule shall have been obtained;
(v) Purchaser shall have obtained the approvals, waivers, consents and releases set forth in Section 6.4 of the Purchaser Disclosure Schedule, in each case in form and substance reasonably satisfactory to haveSellers, a and no such approval, consent, waiver or release shall have been revoked;
(vi) the documents to be delivered under Section 2.5 shall have been delivered to the Sellers; and
(vii) the Merchant Banker Certificate confirming that Purchaser Material Adverse Effecthas complied with all the conditions of the Open Offer shall have been delivered to Sellers.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying agrees that the conditions precedent set forth out in this Section 7.3(a) 3.2 are for the benefit of the Sellers only, and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing may be waived in writing by the Parent Shares, duly endorsed Sellers’ Agents in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;their sole discretion.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers Seller to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment fulfilment or written Seller’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A The Transaction Documents (including other than this Agreement) shall have been executed and delivered by the related warrant agreement), duly executed by Purchaser;parties thereto and true and complete copies thereof shall have been delivered to Seller.
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.03(a) and Section 7.3(b6.03(b) are have been satisfied;.
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have delivered to Sellers the Purchase Price in accordance with the provisions of Section 1.03 hereof.
(i) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (date, except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall respects.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ive) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vf) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(g) Buyer shall have delivered to Sellers cash in an amount equal to the Purchase Price by Purchaser;wire transfer in immediately available funds, to an account or accounts designated at least two (2) Business Days prior to the Closing Date by Sellers in a written notice to Buyer.
(h) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fat Brands, Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Boxlight Group contained in ARTICLE V of this Agreement Article IV shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of such date or timethat specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected have a material adverse effect on Boxlight Group’s ability to have, a Purchaser Material Adverse Effectconsummate the transactions contemplated hereby.
(b) Purchaser Boxlight Group shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the Transactions illegal, otherwise restraining or prohibiting consummation of such Transactions or causing any of the Transactions to be rescinded following completion thereof.
(d) Boxlight Group shall have delivered, or caused to be delivered, to Sellers:the closing deliveries set forth in Section 2.8.
(ie) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBoxlight Group, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.2(a) and Section 7.3(b8.2(b) are have been satisfied;.
(ivf) stock certificates evidencing Boxlight Group shall have delivered to Sellers cash in an amount equal to the Parent SharesEstimated Base Purchase Price by wire transfer in immediately available funds, duly endorsed to an account or accounts designated at least three (3) Business Days prior to the Closing Date by Sellers in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;a written notice to Boxlight Group.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Boxlight Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each and every one of the following conditions; providedconditions precedent, however, that in no event any or all of which may Sellers waive be waived by the conditions contained in Section 7.3(h) or Section 7.3(i):Sellers’ Representative:
(a) Each of the The representations and warranties of Purchaser contained set forth in ARTICLE V of this Agreement Article IV shall be true and correct (disregarding for on and as of the purpose date of such determination any qualification as to materiality or Purchaser Material Adverse Effect) this Agreement and as of the Closing Date with the same force and effect as if though made on such date (except for representations and warranties that speak as of a specific date the Closing Date (giving effect to any “Knowledge” qualifiers and dollar thresholds, but without regard to any “materiality” or time, which representations and warranties shall be true and correct only as of such date or time“Material Adverse Effect” qualifications therein), except to the extent that any breaches representation and warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on or as of the date or during the range of dates so specified), except where the failure of such representations and warranties, individually or in the aggregate, have not had, or to be true and correct would not reasonably be expected have a material adverse effect on Purchaser’s ability to have, a Purchaser Material Adverse Effecttimely consummate the transactions contemplated in this Agreement.
(b) Purchaser shall have performed or and complied in all material respects with all of the agreements and obligations covenants required by under this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivereddelivered to Sellers a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf officer of Purchaser and not in such authorized representative’s individual capacityhis or her capacity as such, certifying that the conditions set forth specified in Section 7.3(aSections 8.3(a) and Section 7.3(b8.3(b) are satisfied;have been fulfilled.
(ivd) stock certificates evidencing The relevant parties to each of the Parent SharesTransaction Documents (other than Sellers and any of their Affiliates) shall have entered into such Transaction Documents and (but for execution and/or delivery of such Transaction Documents by Sellers or any of their Affiliates), duly endorsed such Transaction Documents shall be in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;full force and effect.
(ve) Purchaser shall have made (or caused to be made) the Equity Registration Rights Agreement, duly executed payments required to be made on the Closing Date pursuant to Article III.
(f) Purchaser shall have delivered to Sellers all other closing items to be delivered by Purchaser;Purchaser under Article III.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Air Transport Services Group, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02 and Section 5.04, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement), Buyer shall have delivered to Sellers duly executed by Purchaser;counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.02(b).
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;
have been satisfied (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;“Buyer Closing Certificate”).
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each No Governmental Authority shall have issued any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall transactions contemplated hereunder to be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectrescinded following completion thereof.
(b) Purchaser No Action shall have been commenced against either Seller seeking to prevent the Closing.
(c) All material consents of, or registrations, declarations or filings with, any Governmental Authority legally required for the consummation of the transactions contemplated by this Agreement shall have been obtained or filed.
(d) The representations and warranties of Buyer contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be complete 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) at and as if made on the Closing Date.
(e) Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date, including payment of the Purchase Price on the terms and conditions provided herein.
(cf) Purchaser Buyer shall have delivereddelivered to Sellers duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(g) Sellers shall have received a certificate, or caused to be delivered, in form and substance reasonably satisfactory to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.02(d) and Section 7.3(b8.02(e) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivh) stock certificates evidencing Sellers shall have received a certificate in form and substance reasonably acceptable to Sellers (“Buyer’s Secretary Certificate”) executed by the Parent Sharessecretary of Buyer attaching and certifying true and correct copies of (i) Buyer’s Certificate of Incorporation, duly endorsed in blank or accompanied by stock powers duly endorsed in blank(ii) Buyer’s Bylaws, in proper form for transfer, including any required stamps affixed thereto;
and (viii) the Equity Registration Rights Agreement, duly executed by Purchaser;resolutions of Buyer’s Board of Directors approving this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Samples: Unit Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are further subject to the fulfillment satisfaction (or written waiver, ) at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V Article IV of this Agreement that are (i) qualified as to Buyer Material Adverse Effect shall be true and correct and (disregarding ii) not so qualified shall be true and correct in all material respects (except for the purpose of such determination any qualification breaches as to materiality matters that, individually or Purchaser in the aggregate, could not reasonably be expected to have a Buyer Material Adverse Effect) ), in each case as of the date of this Agreement and as of the Closing Date as if made on at and as of such date time (except for that any representations and warranties that speak given as of a specific date or time, which representations and warranties shall need only be so true and correct only as of such date date). Sellers shall have received a certificate dated as of the Closing Date executed by an officer of Buyer to such effect.
(b) Buyer shall have performed in all material respects its obligations under this Agreement required to be performed by it at or time), except prior to the extent that Closing pursuant to the terms of this Agreement, and Sellers shall have received a certificate dated as of the Closing Date executed by an officer of Buyer to such effect;
(c) Buyer shall have delivered to Sellers or their Affiliates those items set forth in Section 1.6 of this Agreement; and
(d) Except for any breaches of such representations and warrantiesapplicable Taxes, no state governmental authority or other state regulatory body shall have initiated a formal legal or administrative proceeding with respect to the transactions contemplated by this Agreement that, individually or in the aggregate, have not had, has had or would not reasonably be expected to havehave an adverse effect on the financial condition, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed results of operations or complied in all material respects with all agreements and obligations required by this Agreement to be performed business assets or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as liabilities of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank SBC Telcos or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;SBC Directory Operations.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01 and Section 4.04, the representations and warranties of Buyer contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, prohibits any material transaction contemplated hereby.
(d) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(ie) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b) are 7.03(b)have been satisfied;.
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(g) Sellers shall have received a certificate of the Secretary or accompanied an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have delivered to Sellers cash in an amount equal to the Purchase Price by stock powers duly endorsed wire transfer in blankimmediately available funds, to an account or accounts designated by Sellers(such designation to be delivered at least two Business Days prior to the Closing Date) in a written notice to Buyer and shall have delivered to the Escrow Agent the Escrow Amount in immediately available funds.
(i) Buyer shall have delivered to Sellers an opinion of counsel to Buyer, in proper the form for transfer, including any required stamps affixed thereto;attached hereto as Exhibit E.
(vj) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably requests and are reasonably necessary to consummate the Equity Registration Rights transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiverSellers’ waiver (which waiver must be joint and not made by a single Seller without the other Seller), at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE Article V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects as of the Closing Date with the same effect as if though made on such date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants, and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser The Transaction Documents to which Buyer is a party shall have deliveredbeen executed and delivered by Buyer, or caused to be delivered, and true and complete copies thereof shall have been delivered to Sellers:.
(id) Parent Warrant A (including the related warrant agreement)Seller shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ive) stock certificates evidencing Seller shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the director(s) or manager(s) of Buyer authorizing the execution, duly endorsed delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby.
(vf) Buyer shall have delivered to Sellers cash in an aggregate amount equal to the Equity Registration Rights Agreement, duly executed by Purchaser;Purchase Price in accordance with Section 2.03(a)(i).
Appears in 1 contract
Samples: Membership Unit Purchase Agreement (Tribune Publishing Co)
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused prohibits any material transaction contemplated hereby.
(d) Buyer shall have delivered to be deliveredSellers duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in Section 3.2(b).
(e) Seller shall have received a certificate, to Sellersdated as of the Closing Date and signed by a duly appointed officer Buyer (the “Buyer Closing Certificate”), certifying that:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as each of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.2(a) and Section 7.3(b) are have been satisfied;; and,
(ivii) stock certificates evidencing that attached thereto are true and complete copies of all resolutions adopted by the Parent Sharesmanager of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are the only resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vf) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the Equity Registration Rights transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ladenburg Thalmann Financial Services Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Shareholder Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the (i) The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Article IV (other than the Fundamental Representations) shall be true and correct in all respects (disregarding for without giving effect to any limitation indicated by the purpose of such determination any qualification as to materiality or Purchaser words “Material Adverse Effect,” “in all material respects,” “material,” “materially” or similar language therein) as of the Signing Date and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby, and (ii) the Fundamental Representations of Buyer shall be true and correct in all material respects as of the Signing Date and as of the Closing Date with the same effect as though made at and as of such date or time), (except to the extent that any breaches of such those representations and warrantieswarranties that address matters only as of a specified date, individually or which shall be true and correct in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall material respects as of that specified date).
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser Buyer shall have delivered, or caused delivered to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), Shareholder Representative duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser counterparts to all documents and not in such authorized representative’s individual capacity, certifying that the conditions any other deliverables set forth in Section 7.3(a2.05(a) and Section 7.3(b) are satisfied;shall have taken all other actions, if any, required thereunder.
(ivd) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transferThe Excluded Assets, including any required stamps affixed thereto;
(v) the Equity Registration Rights AgreementShoe Assets, duly executed shall be transferred out of the Company to one or more Sellers or to an entity designated by Purchaser;Sellers prior to the Closing.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Article IV shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of such date or timethat specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected to have, have a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser Buyer shall have delivereddelivered to Sellers cash in an amount equal to (i) the Estimated Cash Consideration minus the Deposit and minus the Escrow Amount by wire transfer in immediately available funds, to an account or caused accounts designated by Sellers in a written notice to be delivered, Buyer and (ii) the Escrow Amount to the escrow agent pursuant to the Escrow Agreement.
(d) Buyer shall have delivered to Sellers:
(i) Parent Warrant A (including the related warrant agreement)a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed dated as of the Closing Date and signed by a duly authorized representative officer of Purchasereach of Buyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b(b) have been satisfied.
(ii) A certificate from the Secretary of Buyer certifying on the Closing Date that the following are satisfiedtrue, correct and complete and attaching a copy thereof: (a) the Buyer’s incorporation documents and by-laws as in effect immediately prior to the Closing, (b) resolutions unanimously and duly and validly adopted by Buyer’s boards of directors authorizing the transactions contemplated by this Agreement, (c) an incumbency certificate, and (d) a certificate of good standing of Buyer issued by the Secretary of State of the State of Delaware as of a date not more than ten days prior to the Closing Date;
(iii) The Xxxx of Sale, duly executed by Buyer;
(iv) stock certificates evidencing the Parent SharesThe Consulting/Employment Agreements, duly endorsed in blank or accompanied executed by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed theretoBuyer;
(v) the Equity Registration Rights AgreementSublease, duly executed by Purchaser;Buyer; and
(vi) Such other bills of sale, assignments, assumptions and other instruments of transfer or conveyance as Sellers may reasonably request or as may otherwise be necessary to evidence and effect the sale, assignment, transfer, conveyance and delivery of the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct (disregarding for in all respects on and as of the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) date hereof and on and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to where the extent that any breaches failure of such representations and warrantieswarranties to be so true and correct has not had, and would not, individually or in the aggregate, have not had, or would not be reasonably be expected to havematerially adversely affect the ability of Buyer to timely consummate the transactions contemplated by this Agreement; provided, however, that Buyer Fundamental Representations shall be true and correct in all respects as of the date hereof and on and as of the Closing Date (except those Buyer Fundamental Representations that address matters only as of a Purchaser Material Adverse Effectspecified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser Buyer shall have delivered, or caused delivered to be delivered, to SellersSellers the following documents:
(i) Parent Warrant A a certificate of the Secretary of Buyer, certifying to the effect that each of the conditions set forth in Sections 9.3(a) and 9.3(b) have been satisfied and setting forth (including A) the related warrant agreement)names, duly executed by Purchasersignatures and positions of the Persons authorized to execute this Agreement and any other Transaction Documents to which Buyer is a party on behalf of Buyer and (B) a copy of the resolutions of the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and any other Transaction Documents to which Buyer is a party;
(ii) Parent Warrant B (including Buyer shall pay the related warrant agreement)Estimated Purchase Price, duly executed by Purchaserminus the Escrow Amount, minus the Sellers’ Representative Expense Fund to the Sellers’ Representative at the Closing;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying evidence reasonably satisfactory to Buyer that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedHealth Care Regulatory Filings have been approved by the applicable Governmental Authority as final action;
(iv) stock certificates evidencing a counterpart of each employment agreement with the Parent SharesKey Person, duly endorsed in blank or accompanied executed by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed theretoBuyer;
(v) a counterpart of the Equity Registration Rights Transition Services Agreement duly executed by Buyer;
(vi) a counterpart of the Flow of Funds Memorandum duly executed by Buyer;
(vii) a counterpart of the Escrow Agreement, duly executed by PurchaserBuyer;
(viii) Buyer will have deposited, by wire transfer of immediately available funds, with the Escrow Agent in accordance with the Flow of Funds Memorandum and the terms of the Escrow Agreement (1) the Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, and (3) the PRF Escrow Amount to the accounts designated by the Escrow Agent in the Escrow Agreement; and
(ix) Buyer shall pay the Sellers’ Representative Expense Fund, by wire transfer of immediately available funds, to Sellers’ Representative in accordance with the Flow of Funds Memorandum.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Aveanna Healthcare Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01 and Section 4.04, the representations and warranties of Buyer contained in this Agreement, the Escrow Agreement and each of the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement, the Escrow Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) All approvals, consents and waivers that are listed on Section 7.03(c) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Seller Representative at or prior to the Closing.
(cd) Purchaser The Escrow Agreement and each of the Ancillary Documents shall have deliveredbeen executed and delivered by the parties thereto other than Sellers, or caused the Seller Representative and the Company and true and complete copies thereof shall have been delivered to be deliveredthe Seller Representative.
(e) Buyer shall have delivered to Sellers cash and Accel Stock in an amount equal to the Purchase Price as contemplated by Section 2.03.
(f) Buyer shall have delivered to the Escrow Agent by wire transfer of immediately available funds the Indemnification Escrow Amount and the Purchase Price Adjustment Escrow Amount.
(g) Buyer shall have delivered to third parties by wire transfer of immediately available funds that amount of money due and owing from the Company and Sellers to such third parties as Transaction Expenses as set forth on the Closing Transaction Expenses Certificate.
(h) Buyer shall have delivered to holders of outstanding Indebtedness, if any, by wire transfer of immediately available funds that amount of money due and owing from the Company to Sellers:such holder of outstanding Indebtedness as set forth on the Closing Indebtedness Certificate.
(i) Parent Warrant A (including the related warrant agreement)The Seller Representative shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivj) stock certificates evidencing The Seller Representative shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Accel and Accel Sub, duly endorsed respectively, certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Accel and the Managers of Accel Sub, as applicable, authorizing the execution, delivery and performance of this Agreement, the Escrow Agreement and each of the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vk) The Seller Representative shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Accel and Accel Sub, respectively, certifying the names and signatures of the officers of Accel and Accel Sub, as applicable, authorized to sign this Agreement, duly executed the Escrow Agreement and each of the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have obtained and bound the R&W Insurance Policy.
(m) Buyer shall have delivered to the Seller Representative such other documents or instruments as the Seller Representative or any Seller reasonably requests and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Accel Entertainment, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Buyer shall have issued to EFV the Buyer Note in an aggregate principal amount equal to the Estimated Net Consideration, as set forth in the Closing Estimate.
(b) Buyer shall have delivered to EFV the Cash Consideration by wire transfer of immediately available funds to the account designated in writing by Sellers’ Representative in the Closing Estimate.
(c) Buyer shall have issued to EFV the Warrant.
(d) The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (date, except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall respects.
(be) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement Agreement, the Buyer Note and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(cf) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:prohibits any material transaction contemplated hereby.
(ig) Parent Warrant A (including the related warrant agreement)Sellers’ Representative shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(e) are have been satisfied;.
(ivh) stock certificates evidencing Sellers’ Representative shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the board of directors or managers of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement, the Buyer Note and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blankconnection with the transactions contemplated hereby and thereby; and (ii) the names and signatures of the officers of Buyer authorized to sign this Agreement, in proper form for transferthe Buyer Note, including any required stamps affixed thereto;the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(vi) Buyer shall have delivered to Sellers’ Representative such other documents or instruments as Sellers’ Representative reasonably requests and are reasonably necessary to consummate the Equity Registration Rights transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fat Brands, Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.1 and Section 5.2, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.1 and Section 5.2 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No Action shall have deliveredbeen commenced against Buyer, or caused to Sellers or Aero, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be deliveredin effect, to Sellers:which restrains or prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreement), Buyer shall have delivered to Sellers duly executed by Purchaser;counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.2(b).
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of Purchaser, on behalf Buyer that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;have been satisfied (the "Buyer Closing Certificate").
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Addvantage Technologies Group Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, prohibits any material transaction contemplated hereby.
(d) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(ie) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Buyer shall have delivered to Sellers the Equity Registration Rights Cash at Closing.
(h) Buyer shall have executed and delivered to Sellers the Promissory Note.
(i) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Good Times Restaurants Inc)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to sell the Purchased Assets and to consummate the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Assets contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of the Purchased Assets contemplated herein shall have been issued and remain in effect (each Party agreeing to use its best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Assets;
(c) Sellers shall have received all of Sellers' Required Regulatory Approvals, in form and substance reasonably satisfactory (including no material adverse conditions) to them and such approvals shall be final and non-appealable;
(d) All consents and approvals for the consummation of the sale of the Purchased Assets contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which any Seller is party or by which any Seller, or any of the Purchased Assets, may be bound, shall have been obtained, other than those which if not obtained, would not, individually and in the aggregate, create a Material Adverse Effect; 80
(e) Buyer shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(f) The representations and warranties of Purchaser contained Buyer set forth in ARTICLE V of this Agreement that are qualified by materiality shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which all other representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements as of the Closing Date, in each case as though made at and obligations required by this Agreement to be performed or complied with by it prior to or at as of the Closing.Closing Date;
(cg) Purchaser Sellers shall have received a certificate from an authorized officer of Buyer, dated the Closing Date, to the effect that, to such officer's Knowledge, the conditions set forth in Sections 7.2(d), (e) and (f) have been satisfied by Buyer;
(h) Effective upon Closing, Buyer shall have assumed, as set forth in Section 6.10, all of the applicable obligations under the IBEW Collective Bargaining Agreement as they relate to Transferred Union Employees;
(i) Sellers shall have received an opinion from Buyer's counsel reasonably acceptable to Sellers, dated the Closing Date and satisfactory in form and substance to Sellers and their counsel, substantially in the form of Exhibit N hereto;
(j) Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers at the related warrant agreement)Closing, duly executed by PurchaserBuyer's closing deliveries described in Section 3.7;
(iik) Parent Warrant B (including Sellers shall have received from Buyer's members copies of all required consents and approvals from Governmental Authorities relating to the related warrant agreement)Member Letters, duly executed by Purchaserand the Member Letters shall not have been amended and shall be in full force and effect;
(iiil) Sellers shall have received a certificate executed ruling from the IRS to the effect that Sellers will be allowed current ordinary deductions for federal income tax purposes for any amounts treated as realized by Sellers, or otherwise recognized as income to Sellers, as a result of Buyer's assumption of Decommissioning liabilities with respect to TMI-1 pursuant to Section 2.3(f). In addition, the Closing Date by a duly authorized representative IRS rulings or opinions of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions counsel applicable to Sellers set forth in Section 7.3(a6.12(b) and Section 7.3(b) are satisfied;and/or (c), as the case may be, shall be received; and
(ivm) stock certificates evidencing Buyer shall have entered into the Parent SharesEasement, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights License and Attachment Agreement, duly executed by Purchaser;and such Agreement shall be in full force and effect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pennsylvania Electric Co)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Contemplated Transactions shall be subject to the fulfillment or written the Seller Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02 and Section 5.04, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents, and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 Effective Date and on and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct only in all respects on and as of the Effective Date and on and as of the Closing Date with the same effect as though made at and as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transactions contemplated hereby.
(d) All approvals, consents, and waivers that are listed on Schedule 5.02 shall have been received, and executed counterparts thereof shall have been delivered to the Seller Representative at or prior to the Closing.
(ce) Purchaser The Ancillary Documents shall have deliveredbeen executed and delivered by the parties thereto and complete copies thereof shall have been delivered to the Seller Representative.
(f) Buyer shall have delivered an amount equal to the Closing Date Payment, or caused to be deliveredless the Escrow Amount, by wire transfer of immediately available funds, to Sellers:an account or accounts designated at least two (2) Business Days prior to the Closing Date by Seller Representative in a written notice to Buyer.
(g) Buyer shall have delivered to the Escrow Agent by wire transfer of immediately available funds the Escrow Amount.
(h) Buyer shall have delivered to third parties by wire transfer of immediately available funds that amount of money due and owing from Sellers and/or the Company to such third parties as Transaction Expenses as set forth on the Closing Transaction Expenses Certificate.
(i) Parent Warrant A (including Buyer shall have delivered to holders of outstanding Indebtedness, if any, by wire transfer of immediately available funds that amount of money due and owing from the related warrant agreement), duly executed by Purchaser;Company to such holder of outstanding Indebtedness as set forth on the Closing Indebtedness Certificate.
(iij) Parent Warrant B (including the related warrant agreement)Seller Representative shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.03(a) and Section 7.3(b8.03(b) are have been satisfied;.
(ivk) stock certificates evidencing Seller Representative shall have received a certificate of the Parent SharesSecretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the Contemplated Transactions, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the Contemplated Transactions.
(vl) Xxxxx shall have delivered to Seller Representative such other documents or instruments as Seller Representative reasonably requests and are reasonably necessary to consummate the Equity Registration Rights Agreement, duly executed by Purchaser;Contemplated Transactions.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are with respect to the Initial Closing shall be subject to the fulfillment satisfaction or written waiver, waiver by the Seller Representative at or prior to or at the Closing, Initial Closing Date of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The representations and warranties of Purchaser contained herein and in the Purchaser Representations Certificate shall have been accurate, true and correct in all material respects (except that all such representations and warranties that are qualified by Purchaser Material Adverse Effect shall be accurate, true and correct in all respects) on and as of the date hereof; PROVIDED, HOWEVER, that the representations and warranties of Purchaser contained in ARTICLE V of this Agreement SECTIONS 5.1, 5.2, 5.7 and 5.9 (except with regard to breaches or claims previously asserted by Purchaser, including as to Loss Contingencies and indemnification claims) shall also be accurate, true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date in all material respects (except for that all such representations and warranties that speak as of a specific date or time, which representations and warranties are qualified by Purchaser Material Adverse Effect shall be accurate, true and correct only in all respects) on and as of such date or time), except to the extent that any breaches Initial Closing Date with the same force and effect as though made by Purchaser on and as of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse EffectInitial Closing Date.
(b) Purchaser shall have performed or and complied in all material respects with all agreements of its covenants and obligations required by contained in this Agreement to be performed or and complied with by it on or prior to or at the ClosingInitial Closing Date.
(c) Purchaser shall have delivereddelivered to the Seller Representative a certificate of Purchaser dated as of the Initial Closing Date, signed by a senior officer of Purchaser, certifying as to compliance with SECTIONS 7.3(a) and 7.3(b).
(d) Purchaser shall have obtained the release or caused termination of all BellSouth Guarantees relating to the Initial Acquired Companies unless Sellers, in their sole discretion, shall have consented to the failure to obtain the release or termination of the BellSouth Guarantees relating to the Initial Acquired Companies, in which case Purchaser shall indemnify Sellers pursuant to SECTION 10.3(c) from and against any liabilities or obligations of Sellers or their Affiliates arising out of or related to any payments made by a BellSouth Entity pursuant to a BellSouth Guarantee following the Closing.
(e) Purchaser shall have paid all amounts required in connection with the termination of the Technical Services Agreements with respect to the Initial Acquired Companies in conformity with SECTION 6.21.
(f) Purchaser shall have delivered to the Seller Representative evidence in form and substance reasonably satisfactory to Seller Representative to the effect that the amounts owed or payable with respect to all Pay-Off Debt of any Initial Acquired Company required to be deliveredsatisfied, paid, discharged or acquired pursuant to Sellers:SECTION 6.7(a) have been satisfied, paid, discharged or acquired in full and such creditor(s) shall have no further claims or rights in connection therewith.
(g) Solely with respect to the Closing of the transactions contemplated in this Agreement in respect of Peck Holdings or any successor Holding Company formed to hold (i) Parent Warrant A (including the related warrant agreement)Xxxuvian Acquired Company, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement)Uruguayan Acquired Company, duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of PurchaserColombian Acquired Company, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent SharesNicaraguan Acquired Company, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Venezuelan Acquired Company, and (vi) if Seller so elects, in its sole discretion, any other Acquired Company, all conditions to Closing set forth in SECTIONS 7.1, 7.2 and 7.3 shall have been satisfied or waived in respect of all of the foregoing Acquired Companies.
(h) Since the date of this Agreement, duly executed by Purchaser;there shall not have occurred any event or development that has had or that would reasonably be expected to have a Material Adverse Effect, PROVIDED, HOWEVER, that this condition shall be deemed to be satisfied and waived in the event that Purchaser waives and releases its rights as to any indemnity or other claim against Sellers or the BellSouth Entities with respect to such Material Adverse Effect.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate this Agreement and the transactions contemplated by this Agreement are hereby is subject to the fulfillment or written waiverfulfillment, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):precedent:
(a) Each No Governmental or Regulatory Body of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law which is in effect on the Closing Date which has or would have the effect of prohibiting, enjoining or restraining the consummation of the transactions contemplated by this Agreement to occur on the Closing Date or otherwise making such transactions illegal;
(b) The representations and warranties of Purchaser the Buyers contained in ARTICLE V of this Agreement (i) that are qualified as to materiality, shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) when made and as of the Closing Date and (ii) that are not qualified as if made on such date (except for representations and warranties that speak as of a specific date or timeto materiality, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with when made and on and as of the Closing Date, and the Buyers shall have delivered to the Sellers a certificate, dated the Closing Date, to such effect;
(c) The Buyers shall have caused all agreements covenants, agreements, and obligations conditions required by this Agreement (i) that are qualified as to materiality, to be performed or complied with by it them prior to or at the Closing.
Closing to be so performed or complied with in all respects and (cii) Purchaser that are not qualified as to materiality, to be performed or complied with by them prior to or at the Closing to be so performed or complied with in all material respects. The Buyers shall have deliveredexecuted and delivered to Sellers a certificate, or caused to be delivereddated the Closing Date, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchasersuch effect;
(iid) Parent Warrant B (including No Proceeding shall have been instituted or, to the related warrant agreement)Knowledge of the Buyers, duly executed by Purchaserthreatened to restrain or prohibit any of the transactions contemplated hereby, and the Buyers shall have delivered to Sellers a certificate, dated the Closing Date, to such effect;
(iiie) The Escrow Payment shall be released from escrow and paid to the Sellers; and
(f) The Buyers shall have entered into a certificate executed as xxxx of sale, assignment and assumption agreement with regard to the Contracts set forth on Schedule 2.3 in a form mutually agreed upon by the Parties. The foregoing conditions are for the exclusive benefit of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser Sellers and not in any such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blankcondition may be waived, in proper form for transferwhole or in part, including by the Sellers at or prior to the Closing, and the Sellers shall have the right to proceed with the transactions contemplated hereby without waiving any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;of its other rights hereunder.
Appears in 1 contract
Samples: Asset and Membership Interest Purchase Agreement (Forbes Energy Services Ltd.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment fulfilment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02, and Section 5.04, the representations and warranties of Buyer contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 Closing Date date hereof and as if of the Effective Time with the same effect as though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct only in all respects on and as of the date hereof and on and as of the Effective Time with the same effect as though made at and as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No Action shall have deliveredbeen commenced by any Person not a party to this Agreement against Buyer or Sellers, which would prevent the Closing. No injunction or caused to restraining order shall have been issued by any Governmental Authority, and be deliveredin effect, to Sellers:which restrains or prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including Buyer shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.02(c), duly executed by Purchaser;.
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the Parent Shares, duly endorsed in blank or accompanied transactions contemplated by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions to be performed by them in connection with the Closing are subject to satisfaction of the following conditions:
(i) The representations and warranties set forth in Section 3(b) above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Buyers shall have performed and complied with all of their covenants hereunder in all material respects through the Closing;
(iii) Buyers shall have delivered to Sellers a certificate to the effect that each of the conditions specified above in Section 7(b)(i)-(ii) is satisfied in all respects;
(iv) No action, suit, or proceeding not disclosed in Section 4(j) of the Disclosure Schedule shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement are or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; and no such injunction, judgment, order, decree, ruling, or charge shall be in effect;
(v) Sellers and Civic Parking shall have received all material third party consents, releases and amendments required to consummate the transactions contemplated by this Agreement, including without limitation (A) the consents of the Office of the Commissioner of Baseball, the Commissioner of Baseball, the National League of Professional Baseball Clubs, the National League President and/or the Ownership Committee of Baseball required by Section 13.1 of the Operating Agreement and corresponding provisions of Sellers' and their Affiliates' corporate and company documents, (B) the consents of the holders of Indebtedness and Security Obligations to the transactions contemplated by this Agreement, including without limitation the transfer of the Excluded Assets and the Units, (C) the discharge or release of Civic Parking's Indebtedness and Security Obligations, or the assignment thereof to or assumption by an Affiliate of Civic Parking, and execution by the holders of Civic Parking's Indebtedness or Security Obligations of all agreements or amendments necessary to effect the foregoing (subject, in the case of Indebtedness and Security Obligations to The Boatmen's National Bank of St. Louis, to the payment in full of such Indebtedness out of the Purchase Price), and (D) any consents to any of such transactions required to be given by the holders of Indebtedness or Security Obligations of Civic Parking's Affiliates under agreements or Security Obligations applicable to Civic Parking or such Affiliates and the execution of such holders of Indebtedness of such Affiliates of all agreements or amendments and Security Interests necessary to effect the foregoing;
(vi) Sellers' members or shareholders, as the case may be, shall have given all required consents to Civic Parking's transfer of the Excluded Assets to another Person and to Sellers' amendment of Article IX of the Operating Agreement to permit Sellers' sale of the Purchased Units;
(vii) Sellers shall have obtained a title insurance commitment for the Bus Lot and the "Marriott/Mxxx Xxxxx" property (as described on Exhibit D) in such amount, not exceeding the cost basis allocated thereto on Civic Parking's books, and subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditionsonly such exceptions as Sellers shall reasonably deem acceptable; provided, however, that that: (A) any exceptions set forth in no event may Sellers waive the conditions contained title insurance policy described in Section 7.3(h4(g) of the Disclosure Schedule, or Section 7.3(i):which shall have been permitted or created as a result of any acts or omissions by Sellers or Civic Parking or their Affiliates, are hereby agreed to be acceptable to Sellers, and (B) if Sellers shall fail to notify Buyers of their inability to obtain such commitment or of any unacceptable exceptions within 7 days after the Effective Date, then this contingency shall be deemed waived;
(aviii) Each of All applicable waiting periods (and any extensions thereof) under the representations and warranties of Purchaser contained in ARTICLE V of Hxxx-Xxxxx-Xxxxxx Act with respect to the transactions contemplated by this Agreement shall be true have expired or otherwise been terminated;
(ix) All parties thereto other than Sellers and correct (disregarding their Affiliates shall have entered into a management agreement for the purpose Bus Lot substantially as set forth in Exhibit F attached hereto and the same shall be in full force and effect; and the existing management agreement between Civic Parking and Central Parking System of such determination any qualification St. Louis, Inc. shall have been terminated with respect to the Bus Lot;
(x) The Promissory Note shall have been guaranteed by Buyers' Parent as set forth therein; and
(xi) The letter of credit substantially in the form attached as Exhibit C shall have been issued; and
(xii) All actions to materiality or Purchaser Material Adverse Effect) as be taken by Buyers and Buyers' Parent in connection with consummation of the Closing Date as if made on such date (except for representations transactions contemplated hereby and warranties that speak as of all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Sellers. Sellers may waive any condition specified in this Section 7(b) by executing a specific date writing so stating at or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Membership Interests (Central Parking Corp)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing (or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as sale of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date Subject Interests contemplated hereby shall have expired or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.been terminated;
(b) Purchaser No preliminary or permanent injunction or other order or decree by any federal or state court or Governmental Authority that declares this Agreement invalid or unenforceable in any respect or that prevents the consummation of the transactions contemplated herein shall have performed been issued and remain in effect (each Party agreeing to use its Commercially Reasonable Efforts to have any such injunction, order or complied in all material respects with all agreements decree lifted) and obligations required no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority that prohibits the consummation of the transactions contemplated herein; and no action or proceeding before any Governmental Authority that a Person knowledgeable as to such matters would deem to be more than likely to succeed on its merits shall have been instituted by any Person (other than any Seller or any Affiliate thereof) that seeks to prevent or delay the consummation of the transactions contemplated by this Agreement to be performed or complied with by it prior to that challenges the validity or at the Closing.enforceability of this Agreement;
(c) Purchaser Sellers shall have delivered, or caused to be delivered, to received all of Sellers:’ Required Regulatory Approvals and evidence of the receipt of Buyer’s Required Regulatory Approvals.
(id) Parent Warrant A (including All consents and approvals for the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as consummation of the Closing Date sale of the Subject Interests contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which any of Sellers is party or by which any of Sellers may be bound, shall have been obtained, other than those that if not obtained, would not have a duly authorized representative of Purchaser, Material Adverse Effect on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedany BGH Entity or BPL Entity;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment fulfilment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02, and Section 5.04, the representations and warranties of Buyer contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 Closing Date date hereof and as if of the Effective Time with the same effect as though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct only in all respects on and as of the date hereof and on and as of the Effective Time with the same effect as though made at and as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No Action shall have deliveredbeen commenced by any Person not a party to this Agreement against Buyer or Sellers, which would prevent the Closing. No injunction or caused to restraining order shall have been issued by any Governmental Authority, and be deliveredin effect, to Sellers:which restrains or prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including the related warrant agreementAll deliverables of Buyer required pursuant to Section 3.02(b), duly executed by Purchaser;.
(iie) Parent Warrant B (including Buyer shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.02(c), duly executed by Purchaser;.
(iiif) Sellers shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf in substantially the form attached hereto as Exhibit F, that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivg) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors authorizing the execution, duly endorsed delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by the Buyer, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vh) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(i) Sellers shall have entered into KPW Bifurcated HW Contracts and terminated the KPW Contracts.
(j) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers each Seller under this Agreement to sell the Shares and consummate the other transactions contemplated by this Agreement hereby are subject to the fulfillment satisfaction, on or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive unless waived (to the extent such conditions contained in Section 7.3(hcan be waived) or Section 7.3(iby Seller’s Representative (on behalf of such Seller):
(a) Each Accuracy of the Representations and Warranties. The representations and warranties made by Parent and Buyer in Article V of Purchaser contained this Agreement that are qualified by “material,” material adverse effect or similar terms shall be true and correct in ARTICLE all respects as of the date of this Agreement and on and as of the Closing Date with the same effect as if such representations and warranties had been made at and as of the Closing Date, except for those representations and warranties which address matters only as of a particular date (which shall be true and correct in all respects as of such particular date), and all other representations and warranties made by Parent and Buyer in Article V of this Agreement shall be true and correct (disregarding for in all material respects as of the purpose date of such determination any qualification as to materiality or Purchaser Material Adverse Effect) this Agreement and on and as of the Closing Date with the same effect as if made on such date (except for representations and warranties that speak had been made at and as of the Closing Date, except for those representations and warranties which address matters only as of a specific particular date or time, (which representations and warranties shall be true and correct only in all material respects as of such date or timeparticular date), except to the extent that any breaches inaccuracies of such representations and warrantieswarranties in the aggregate do not have, and would not reasonably likely have, individually or in the aggregate, have not had, or would not reasonably be expected a material adverse effect on Parent and Buyer’s ability to have, a Purchaser Material Adverse Effectconsummate the transactions contemplated hereby.
(b) Purchaser Performance of Obligations. Parent and Buyer shall have performed or complied in all material respects with all agreements agreements, obligations and obligations covenants required by this Agreement to be performed or complied with by it prior to under this Agreement on or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Date.
Appears in 1 contract
Samples: Stock Purchase Agreement
Conditions to Obligations of Sellers. The obligations obligation of Sellers each Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state or local jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each (B) cause any of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required transactions contemplated by this Agreement to be performed rescinded following consummation (and no such injunction judgment, order, decree, ruling or complied with by it prior to or at the Closing.
(c) Purchaser charge shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreementin effect), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing Buyer shall have delivered to Sellers copies of the Parent Sharesresolutions of its Board of Directors authorizing and approving the execution of this Agreement, duly endorsed in blank or accompanied and the consummation of the transactions contemplated hereby, certified as true and correct on the Closing Date by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed theretoits corporate secretary;
(v) Buyer and Sellers shall have entered into the Equity Registration Rights Escrow Agreement;
(vi) Buyer shall have entered into Assignment of Franchises with each franchisee (and franchise guarantor) in respect of Franchise Restaurants and the Joint Venture Restaurant;
(vii) Buyer shall have delivered to Sellers a certificate to the effect that each of the conditions specified in Section 6(b)(i)-(iii) is satisfied in all respects;
(viii) Sellers, duly executed Principal Officer and each Owner shall have been released from any personal guarantees in respect of Real Property Leases or shall have been provided indemnification reasonably satisfactory to Sellers, Principal Officers and each Owner in respect of the Real Property Leases;
(ix) Sellers shall have received an opinion of Buyer's counsel in form reasonably satisfactory to Sellers; and
(x) all actions to be taken by Purchaser;Buyer in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Seller. A Seller may waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers' Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01 and Section 4.18, the representations and warranties of Buyer contained in this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.18 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied with, in all material respects with respects, all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Disclosure Schedule Section 4.04 shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser From the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Parent.
(f) No order ceasing or suspending trading in the GTI Shares (or any of them) or any other securities of Parent (including the Subscription Receipts) shall be outstanding and no proceedings for this purpose shall have delivered, or caused to be deliveredbeen instituted or, to the Buyer’s Knowledge, pending, contemplated or threatened.
(g) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(h) Buyer shall have delivered to Sellers cash in an amount equal to the Cash Payment by wire transfer of immediately available funds, to an account or accounts designated at least two Business Days prior to the Closing Date by Sellers in a written notice to Buyer.
(i) Parent Warrant A (including Buyer shall have delivered to Sellers, or as Sellers may direct, share certificates or DRS statements representing the related warrant agreement)GTI Shares payable as the Initial Consideration, duly executed by Purchaser;minus the Escrow Fund Share Portion, registered in the name of the applicable Seller.
(iij) Parent Warrant B (including Buyer shall have notified the related warrant agreement), duly executed CSE of the issuance of all GTI Shares pursuant to this Agreement in accordance with the policies of the CSE and all necessary steps shall have been taken to permit such shares to be listed and posted for trading on the CSE subject only to the delivery of the documentation required by Purchaser;Section 3 of Policy 6 – Distributions of the CSE.
(iiik) Buyer shall have delivered to holders of outstanding Indebtedness, if any, by wire transfer of immediately available funds that amount of money due and owing from the Company to such holder of outstanding Indebtedness as set forth on the Closing Indebtedness Certificate.
(l) Sellers shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivm) stock certificates evidencing Sellers shall have received copies of all resolutions adopted by the Parent Sharesboard of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vn) Sellers shall have received copies of all resolutions adopted by the Equity Registration Rights Agreementboard of directors of Parent appointing of Alex to the board of directors of Parent.
(o) Parent and Buyer shall have issued the Subscription Receipts pursuant to Section 5.18 on January 1, duly executed by Purchaser;2019.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement Closing are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that conditions (unless waived by the Sellers' Representative in no event may Sellers waive the conditions contained in accordance with Section 7.3(h) or Section 7.3(i11.3):
(a) Each The representations and warranties of Buyer contained in this Agreement and in any document, instrument or certificate delivered hereunder will be true and correct in all material respects (other than the representations and warranties of Purchaser contained in ARTICLE V of this Agreement Sections 5.2 and 5.3, which shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effectin all respects) as of the date hereof at and as of the Closing Date with the same force and effect as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse EffectClosing.
(b) Purchaser shall Buyer will have performed or and complied in all material respects with all agreements agreements, obligations and obligations required by covenants contained in this Agreement that are required to be performed or complied with by it Buyer at or prior to or at the Closing.
(c) Purchaser There shall have delivered, or caused to not be delivered, to Sellers:
(i) Parent Warrant A in effect any Government Order, injunction (including whether temporary, preliminary or permanent) or other legal restraint or prohibition issued by any Governmental Authority of competent jurisdiction that has the related warrant agreement)effect of making the consummation of the Transactions illegal or otherwise prohibiting the consummation of the Transactions and there shall not be any Legal Requirement or Government Order enacted, duly executed by Purchaser;
entered, enforced or deemed applicable to the Transactions which makes the consummation of the Transactions illegal or (ii) Parent Warrant B any Actions or investigations by or before any Governmental Authority (including A) which prevents consummation of any of the related warrant agreement)Transactions, duly executed by Purchaser;(B) which would result in any of the Transactions being rescinded following consummation or (C) which would limit or otherwise adversely affect in any material respect the right of Sellers to any of the Contingent Payment.
(iiid) a certificate executed as of Buyer must have caused the Buyer Closing Date Documents required by a duly authorized representative of Purchaser, on behalf of Purchaser and Section 2.7(b) to be delivered (or tendered subject only to Closing) to the applicable Sellers.
(e) There shall not in such authorized representative’s individual capacity, certifying that have occurred the conditions event set forth on Schedule 7.2(e) of this Agreement. All actions and proceedings to be taken by Buyer, and all documents required to be delivered by Buyer, as a condition to the Transactions, are to be reasonably satisfactory in Section 7.3(a) form and Section 7.3(b) substance to Sellers (provided that to the extent such forms are satisfied;
(iv) stock certificates evidencing the Parent Sharesattached as Exhibits or otherwise hereto, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;then such forms and substance are deemed reasonably satisfactory).
Appears in 1 contract
Samples: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
Conditions to Obligations of Sellers. The obligations of Sellers the Seller Parties to consummate the transactions contemplated by in this Agreement are shall be subject to the fulfillment on or written waiver, prior to or at the Closing, Closing Date of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement Article IV shall be true and correct in all material respects (disregarding for the purpose other than those representations and warranties of such determination any qualification as to Buyer that are qualified by materiality or Purchaser Material Adverse Effect, which shall be true and correct in all respects) as of the date made and (having been deemed to have been made again on and as of the Closing Date as if made in the same language) on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)the Closing Date, except (i) to the extent that any breaches such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such representations and warrantiesspecified date or (ii) any such inaccuracies or breaches which, individually or in the aggregate, have not had, had or would could not reasonably be expected to have, have a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have performed or and complied in all material respects with all each of the covenants and agreements and obligations required by this Agreement to be performed or complied with by it on or prior to or at the ClosingClosing Date.
(c) Purchaser No Order shall have deliveredbeen entered and be in effect by any Governmental Body of competent jurisdiction, and no statute, rule, regulation or caused to other requirement shall have been promulgated or enacted and be deliveredin effect, to Sellers:that on a temporary or permanent basis restrains, enjoins or invalidates the transactions contemplated herein.
(id) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as The Board of Directors of the Closing Date Buyer shall have approved of the issuance by a duly authorized representative the Buyer to the order and direction of Purchaser, on behalf the Sellers of Purchaser and not all of the Shares in such authorized representative’s individual capacity, certifying that the conditions set forth in accordance with Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank2.2 hereinabove and, in proper form for transferaddition, including the Board of Directors of the Buyer, if required, having also approved and received any required stamps affixed thereto;
(v) notices of such other matters as may be agreed to as between the Equity Registration Rights Parties hereto prior the completion of the transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic American Oil Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
(vi) the Xxxx of Sale, together with all other documents described in Section 7.2(c)(iv), each duly executed by Purchaser or its designated Subsidiaries;
(vii) the Assignment and Assumption Agreement, together with all other documents described in Section 7.2(c)(v), each duly executed by Purchaser or its designated Subsidiaries;
(viii) the Novation Agreement, duly executed by Purchaser or its designated Subsidiaries;
(ix) the Government Related Subcontract Agreement, duly executed by Purchaser or its designated Subsidiary;
(x) the Intellectual Property Assignment Agreement, duly executed by Purchaser or its designated Subsidiaries;
(xi) the Transition Services Agreement, duly executed by Purchaser or its designated Subsidiaries;
(xii) the Transfer Tax Forms, duly executed by Purchaser or its designated Subsidiaries, to the extent required;
(xiii) the Assignment and Assumption of Real Property Leases, together with all other documents described in Section 7.2(c)(xii), each duly executed by Purchaser or its designated Subsidiaries;
(xiv) the Assignment and Assumption of Harlem Lease, duly executed by Purchaser or its designated Subsidiaries;
(xv) the Master Lease Agreement, duly executed by Purchaser or its designated Subsidiaries;
(xvi) [Reserved];
(xvii) the Subdivision Master Lease, if required, duly executed by Purchaser or its designated Subsidiaries;
(xviii) any easement agreements required under Section 6.27(c), duly executed by Purchaser or its designated Subsidiaries;
(xix) a certificate of a duly authorized representative of Purchaser (A) certifying that attached to such certificate are true and complete copies of (1) Purchaser’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of Purchaser, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Purchaser is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(g), and (B) certifying as to the incumbency of the officer(s) of Purchaser executing this Agreement and the Ancillary Agreements to which Purchaser is a party; and
(xx) a certificate of good standing for Purchaser from the Secretary of State of the State of Delaware.
(d) [Reserved]
(e) Purchaser shall have filed a certificate of designation for the Preferred Stock, substantially in the form attached hereto as Exhibit Y, with the Secretary of State of the State of Delaware.
(f) Purchaser shall have offset the UST Credit Bid Amount against the amount of Indebtedness of Parent and its Subsidiaries owed to Purchaser as of the Closing under the UST Credit Facilities pursuant to a Bankruptcy Code Section 363(k) credit bid and delivered releases and waivers and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements) with respect to the UST Credit Bid Amount, in a form reasonably satisfactory to the Parties and duly executed by Purchaser in accordance with the applicable requirements in effect on the date hereof, (iii) transferred to Sellers the UST Warrant and (iv) issued to Parent, in accordance with instructions provided by Parent, the Purchaser Shares and the Parent Warrants (duly executed by Purchaser).
(g) Purchaser shall have delivered, or caused to be delivered, to Canada, Sponsor and/or the New VEBA, as applicable:
(i) certificates representing the Canada Shares, the Sponsor Shares and the VEBA Shares in accordance with the applicable equity subscription agreements in effect on the date hereof;
(ii) the Equity Registration Rights Agreement, duly executed by Purchaser;
(iii) the VEBA Warrant (including the related warrant agreement), duly executed by Purchaser; and
(iv) a note, in form and substance consistent with the terms set forth on Exhibit Z attached hereto, to the New VEBA (the “VEBA Note”).
(h) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by Purchaser, and shall be in full force and effect.
(i) The UAW Retiree Settlement Agreement shall have been executed and delivered, shall be in full force and effect, and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
Appears in 1 contract
Samples: Master Sale and Purchase Agreement (General Motors Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Agreement, and perform the actions required of Sellers at the Closing, shall be subject to the fulfillment satisfaction, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the representations and warranties of Purchaser Buyers contained in ARTICLE V Article 4 shall be (i) with respect to the Fundamental Representations, true and correct in all respects, and (ii) with respect to the other representations and warranties, true and correct in all respects as of this Agreement the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), with respect to this clause (disregarding for ii), where the purpose failure of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall to be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected have a material adverse effect on Buyers’ ability to have, a Purchaser Material Adverse Effect.consummate the transactions contemplated by this Agreement;
(b) Purchaser Buyers shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it Buyers prior to or at on the Closing.Closing Date;
(c) Purchaser Sellers shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) received a certificate executed as of the Closing Date signed by a duly authorized representative officer of Purchaser, on behalf each Buyer that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.3(a) and Section 7.3(b6.3(b) are satisfiedhave been satisfied (the “Buyer Closing Certificate”) on and as of the Closing Date;
(ivd) stock certificates evidencing Buyers shall have delivered to Sellers the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
Estimated Cash Purchase Price (vpursuant to Section 2.2.2(a)) the Equity Registration Rights Agreementand Share Purchase Price (pursuant to Section 2.2.2(b)), duly executed by Purchaser;counterparts to the Transaction Documents (other than this Agreement), and such other items as are set forth in Section 2.2.2; and
(e) the Partnership Agreement and the Company Agreement shall have been terminated effective upon the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nine Energy Service, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each No Governmental Authority shall have issued any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall transactions contemplated hereunder to be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectrescinded following completion thereof.
(b) Purchaser No Action shall have been commenced against Buyer or Sellers seeking to prevent the Closing.
(c) All approvals, consents and waivers that are listed in Section 7.02(c) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) The representations and warranties of Buyer contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be complete 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), at and as if made on the Closing Date.
(e) Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date, including payment of the Purchase Price on the terms and conditions provided herein.
(cf) Purchaser Buyer shall have delivereddelivered to Sellers duly executed counterparts to the Transaction Documents and such other documents and deliveries set forth in Section 3.02(b).
(g) Buyer shall have delivered the Senior Debt Repayment pursuant to Section 2.05(b).
(h) Sellers shall have received a certificate, or caused to be delivered, in form and substance reasonably satisfactory to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(e) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(i) Sellers shall have received a certificate in form and substance reasonably acceptable to Sellers (“Buyer’s Secretary Certificate”) executed by the secretary of Buyer attaching and certifying true and correct copies of (i) Buyer’s Certificate of Incorporation, (ii) Buyer’s Bylaws, (iii) the resolutions of Buyer’s Board of Directors approving this Agreement and the transactions contemplated hereby, and (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) resolutions of Buyer’s shareholders approving this Agreement and the Equity Registration Rights Agreement, duly executed by Purchaser;transactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the 7.2.1. The representations and warranties of Purchaser Buyer and Xxxxx, as applicable, contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of such date or timethat specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected have a material adverse effect on Buyer's ability to have, a Purchaser Material Adverse Effectconsummate the transactions contemplated hereby.
(b) Purchaser 7.2.2. Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser 7.2.3. Buyer shall have delivered, or caused delivered to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers the related warrant agreement), Aggregate Purchase Price and duly executed by Purchaser;counterparts to the Transaction Documents.
(ii) Parent Warrant B (including the related warrant agreement)7.2.4. Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.2(i) and Section 7.3(b(ii) have been satisfied.
7.2.5. Sellers shall have received a certificate signed by a duly authorized officer of Buyer certifying that attached thereto are satisfied;true and complete copies of all resolutions adopted by the manager of Buyer 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.
(iv) stock certificates evidencing 7.2.6. There shall not be in effect any Governmental Order by a Governmental Authority of competent jurisdiction restraining, enjoining, declaring unlawful or otherwise prohibiting the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) consummation of the Equity Registration Rights Agreement, duly executed by Purchaser;transactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01 and Section 4.18, the representations and warranties of Buyer contained in this Agreement shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.18 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied with, in all material respects with respects, all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Disclosure Schedule Section 4.04 shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser From the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Parent.
(f) No order ceasing or suspending trading in the GTI Shares (or any of them) or any other securities of Parent (including the Subscription Receipts) shall be outstanding and no proceedings for this purpose shall have delivered, or caused to be deliveredbeen instituted or, to the Buyer’s Knowledge, pending, contemplated or threatened.
(g) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(h) Buyer shall have delivered to Sellers cash in an amount equal to the Cash Payment by wire transfer of immediately available funds, to an account or accounts designated at least two Business Days prior to the Closing Date by Sellers in a written notice to Buyer.
(i) Parent Warrant A (including Buyer shall have delivered to Sellers, or as Sellers may direct, share certificates or DRS statements representing the related warrant agreement)GTI Shares payable as the Initial Consideration, duly executed by Purchaser;minus the Escrow Fund Share Portion, registered in the name of the applicable Seller.
(iij) Parent Warrant B (including Buyer shall have notified the related warrant agreement), duly executed CSE of the issuance of all GTI Shares pursuant to this Agreement in accordance with the policies of the CSE and all necessary steps shall have been taken to permit such shares to be listed and posted for trading on the CSE subject only to the delivery of the documentation required by Purchaser;Section 3 of Policy 6 – Distributions of the CSE.
(iiik) Buyer shall have delivered to holders of outstanding Indebtedness, if any, by wire transfer of immediately available funds that amount of money due and owing from the Company to such holder of outstanding Indebtedness as set forth on the Closing Indebtedness Certificate.
(l) Sellers shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivm) stock certificates evidencing Sellers shall have received copies of all resolutions adopted by the Parent Sharesboard of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vn) Sellers shall have received copies of all resolutions adopted by the Equity Registration Rights Agreementboard of directors of Parent appointing of Alex to the board of directors of Parent.
(o) Parent and Buyer shall have issued the Subscription Receipts pursuant to Section 5.18 on January 1, duly executed by Purchaser;2019.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate carry out the transactions contemplated by this Agreement are subject subject, at the option of the Sellers to the fulfillment satisfaction, or written waiver, prior to or at waiver by the Closing, of each Sellers of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Buyer shall have furnished Sellers with a certified copy of the all necessary corporate action on its behalf approving its execution, delivery and performance of this Agreement.
(b) All representations and warranties of Purchaser each Buyer contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects at and as of the Closing Date as if made on such date (except for representations and warranties that speak were made at and as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)the Closing, except to for changes contemplated by the extent that any breaches terms of such representations this Agreement, and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser each Buyer shall have performed or complied and satisfied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed and satisfied by such Buyer at or complied with by it prior to or at the Closing.
(c) Purchaser As of the Closing Date, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of the Sellers or the Company) shall be pending or threatened before any Governmental Authority seeking to restrain Sellers or prohibit the Closing or seeking Damages against Sellers as a result of the consummation of this Agreement.
(d) Sellers shall have deliveredreceived the opinion of Greenberg, or caused Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A., counsel to be deliveredBuyers, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed dated as of the Closing Date by a duly authorized representative Date, in form and substance reasonably satisfactory to the Sellers, to the effect of PurchaserSections 6.01, 6.02 and 6.03(i). In rendering such opinion, Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Quentel, P.A. may rely as to factual matters on behalf certificates of Purchaser officers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) directors of Buyers and Section 7.3(b) are satisfied;on certificates of governmental officials.
(ive) stock certificates evidencing the Parent SharesEach Buyer shall have furnished Sellers with a certified copy of all necessary corporate action on its behalf approving its execution, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;delivery and performance of this Agreement.
(vf) All notices required to be given in connection with the Equity Registration Rights Agreementtransactions contemplated by this Agreement shall have been duly and timely given.
(g) This Agreement and the Merger shall have been approved and adopted by the vote of each of the Buyers' shareholders as required under applicable laws.
(h) All proceedings to be taken by Buyers in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to each Seller and its counsel, duly executed by Purchaser;and each Seller and said counsel shall have received all such counterpart originals or certified or other copies of such documents as it or they may reasonably request.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 3.2 and Section 3.3, the representations and warranties of Buyer contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser Buyer Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Buyer Material Adverse Effect), on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 3.2 and Section 3.3 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused prohibits any material transaction contemplated hereby.
(d) Buyer shall have delivered to Sellers duly executed counterparts to the Transaction Documents (other than this Agreement) and such other documents and deliveries to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed received by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions Sellers set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;1.3(b).
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations obligation of Sellers each Seller to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment satisfaction on or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event conditions (any of which may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(ibe waived by such Seller):
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5 of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.date;
(b) Purchaser Buyer shall have performed or and complied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed or and complied with by it Buyer on or prior to or at the Closing.Closing pursuant to this Agreement;
(c) Purchaser Buyer shall have delivered, or caused filed the Certificate of Designation with the Secretary of State of the State of Delaware pursuant to be delivered, Section 6.2(j);
(d) Buyer shall have delivered to Sellers:Sellers each of the items required by Section 2.3 of this Agreement;
(e) The Company shall have provided a copy of the board resolution approving the acquisition of Transferred Shares by Buyer adopted pursuant to Section 6.2(a)
(f) The Company shall have provided a copy of the shareholder resolution approving the change of the Company’s name adopted pursuant to Section 6.2(b);
(g) The Company shall have provided a copy of the shareholder resolution approving the appointment of new directors and statutory auditor pursuant to Sections 6.2(c);
(h) The Company shall have delivered the documents listed in Section 6.2(i);
(i) Parent Warrant A (including Buyer and the related warrant agreement), duly executed Company shall have returned or destroyed all information of Sellers in the possession of Buyer or the Company reasonably identified and requested by PurchaserSellers;
(iij) Parent Warrant B (including Each of the related warrant agreement), duly Ancillary Agreements shall have been executed by Purchaserall parties thereto and the same shall be in full force and effect;
(iiik) a certificate executed as The directors of the Closing Date Company nominated by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedBuyer shall have executed General Releases;
(ivl) stock certificates evidencing Each of the Parent Shares, duly endorsed in blank employees of CMJ or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed theretoCINC to be seconded to the Company pursuant to the Current Employees Secondment Agreement and the New Employees Secondment Agreement shall have consented to such secondment;
(vm) The Japanese Ministry of Health and Welfare shall have provided approval to the Equity Registration Rights AgreementCompany to act as a seller of products directly to end users; and
(n) If Buyer performs a search of the Japan Patent Office, duly executed by Purchaser;such search has not produced any liens, restrictions, claim of ownership rights, title, interest in, or any other encumbrance on the Company’s title of each of the patents listed on the list attached hereto as Exhibit C.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by under this Agreement are subject to the fulfillment satisfaction (or, if applicable, waiver in the sole discretion of Sellers, except as to the condition described in Section 12.1(c)) on or written waiver, prior to or at before the ClosingClosing Date, of each of the following conditions:
(a) All of the covenants and other agreements required by this Agreement to be complied with and performed by Purchaser on or before the Closing Date shall have been duly complied with and performed in all material respects; provided, however, that Purchaser shall be deemed to have duly complied with and performed such covenants and agreements in no event may Sellers waive all material respects unless the conditions contained in Section 7.3(h) failure to so perform or Section 7.3(i):comply would have a material adverse effect on Purchaser’s ability to consummate the transactions contemplated by the Agreement;
(ab) Each The representations and warranties made by Purchaser herein or in any certificate or other document delivered pursuant to the provisions hereof or in connection with the transactions contemplated hereby shall be true and correct in all material respects, on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on the Closing Date provided, however, that the representations and warranties of Purchaser contained herein or in ARTICLE V of this Agreement any certificate or other document delivered pursuant to the provisions hereof shall be deemed to be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects on and as of the Closing Date Date, with the same force and effect as if though made on such date (except for representations and warranties that speak as of a specific date or timethe Closing Date, which representations and warranties shall unless the failure to be so true and correct only as of such date or time), except would have a material adverse effect on Purchaser’s ability to consummate the extent that any breaches of such representations and warranties, individually or in transactions contemplated by the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.Agreement;
(c) Purchaser All Regulatory Approvals shall have delivered, or caused to been obtained and shall be delivered, to Sellers:
(i) Parent Warrant A (including the Final and all related warrant agreement), duly executed by Purchaserstatutory waiting periods have expired;
(iid) Parent Warrant B No court or governmental or regulatory authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (including whether temporary, preliminary or permanent) which is in effect to enjoin, or which prohibits, consummation of the related warrant agreement), duly executed by Purchasertransactions contemplated hereby;
(iiie) a certificate executed as of Sellers shall have received the Closing Date items to be delivered by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in pursuant to Section 7.3(a) and Section 7.3(b) are satisfied5.3;
(ivf) stock certificates evidencing the Parent SharesSellers (or any successor in interest) shall have received all consents, duly endorsed in blank approvals, authorizations or accompanied other orders of or actions by stock powers duly endorsed in blankany governmental authorities required or necessary to consummate or effect any Prior Restructuring of Citrus, in proper form for transfer, including and any required stamps affixed thereto;applicable regulatory comment and waiting periods shall have expired and such actions shall be Final (“Regulatory Contingencies”); and
(vg) Sellers shall have received the Equity Registration Rights Agreementconsent and waiver with respect to the Vero Beach Property as contemplated under Section 8.3(e), duly executed by Purchaser;above, or the Vero Beach Property shall automatically be excluded from the sale contemplated hereunder in which event the Purchase Price shall be reduced as described in Section 8.3(e), above.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Cib Marine Bancshares Inc)
Conditions to Obligations of Sellers. The obligations obligation of Sellers each Seller to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, howeverany of which may be waived, that in no event may Sellers waive writing, exclusively by the conditions contained in Section 7.3(h) or Section 7.3(i):Seller Representative:
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto that is qualified by materiality, including the terms “material,” “in all material respects” and “Material Adverse Effect” or words of this Agreement similar effect, shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) qualified on and as of the Closing Date as if made on Date, and each of such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties is not so qualified shall be true and correct only in all material respects on and as of such date or time)the Closing Date, except to the extent that any breaches of such representations and warrantieswarranties refer specifically to an earlier date, individually or in the aggregate, which case such representations and warranties shall have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectbeen true and correct as of such earlier date.
(b) Purchaser shall have performed or complied in all material respects with all agreements obligations and obligations covenants required by this Agreement to be performed or complied with by it at or prior to or at the ClosingClosing Date.
(c) Purchaser The Sellers shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed dated as of the Closing Date and signed by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that each on the conditions set forth in Section 7.3(a8.2(a) and Section 7.3(b(b) are have been satisfied;.
(ivd) stock certificates evidencing There shall not be any Action commenced or threatened against Parent, Purchaser, the Parent SharesCompany or any of the Sellers involving any challenge to, duly endorsed or seeking damages or other relief in blank connection with the Transactions or accompanied by stock powers duly endorsed in blankthat may have the effect of preventing, in proper form for transferdelaying, including any required stamps affixed thereto;making illegal, or otherwise interfering with the Transactions.
(ve) Each of the Equity Registration Rights Agreement, duly executed by Purchaser;items set forth in Section 3.2(b) shall have been delivered to the Sellers.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Conditions to Obligations of Sellers. The obligations obligation of Sellers each Seller to sell the Purchased Interests and to consummate the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by such Seller) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Interests contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court or Governmental Authority which prevents the consummation of the sale of the Purchased Interests contemplated herein shall have been issued and remain in effect (each Party agreeing to use its Commercially Reasonable Efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Interests;
(c) Each Seller shall have received all of such Seller's Sellers' Required Regulatory Approvals, in form and substance reasonably satisfactory (including no materially adverse conditions as described in Section 9.1 (d)) to such Seller and such approvals shall be in full force and effect and either (i) shall be final and non-appealable or (ii) if not final and non-appealable, shall not be subject to the possibility of appeal, review or reconsideration which, in the reasonable opinion of such Seller (A) is likely to be successful and (B), if successful, would have a material adverse effect on the operations or conditions (financial or otherwise) of such Seller;
(d) Buyer shall have received all Buyer's Required Regulatory Approvals (other than those the failure of which to obtain could not reasonably be expected to result in a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller), none of such approvals shall contain any conditions that could reasonably be expected to result in a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller, and such approvals shall be in full force and effect and either (i) shall be final and non-appealable or (ii) if not final and non-appealable, shall not be subject to the possibility of appeal, review or reconsideration which, in the reasonable opinion of such Seller (A) is likely to be successful and (B) if successful, would have a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller;
(e) All consents and approvals for the consummation of the sale of the Purchased Interests contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which such Seller is party or by which such Seller, or any of the NMP-2 Assets, may be bound, shall have been obtained, other than those which if not obtained, would not, individually and in the aggregate, create a material adverse effect on the operations or conditions (financial or otherwise) of such Seller;
(f) Buyer shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(g) The representations and warranties of Purchaser contained Buyer and Parent set forth in ARTICLE V of this Agreement that are qualified by materiality shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which all other representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements as of the Closing Date, in each case as though made at and obligations required by this Agreement to be performed or complied with by it prior to or at as of the Closing.Closing Date;
(ch) Purchaser Each Seller shall have received certificates from an authorized officer of Buyer and Parent, dated the Closing Date, to the effect that, to the knowledge of such officer(s) the conditions set forth in Sections 7.2(f) and (g) have been satisfied by Buyer and Parent;
(i) Effective upon Closing, Buyer shall have assumed, as set forth in Section 6.10, all of the applicable obligations under the IBEW Collective Bargaining Agreement;
(j) Sellers shall have received opinions from Buyer's and Parent's counsel reasonably acceptable to Sellers, dated the Closing Date and satisfactory in form and substance to Sellers and their counsel, substantially in the form of Exhibit K hereto;
(k) Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers at the related warrant agreement)Closing, duly executed by PurchaserBuyer's closing deliveries described in Section 3.7;
(iil) Parent Warrant B (including The liens of the related warrant agreement), duly executed by PurchaserMortgage Indentures on the NMP-2 Assets shall have been released and any documents necessary to evidence such release shall have been delivered to the title company;
(iiim) a certificate executed as The simultaneous sale to Buyer of NMP-l pursuant to the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedNMP-1 Asset Purchase Agreement shall have been completed;
(ivn) stock certificates evidencing Each of the Parent SharesCo-Tenants shall have waived, duly endorsed or provided written irrevocable notice that they will not exercise, any right of first refusal under the Operating Agreements to acquire the interests of Sellers in blank the NMP-2 Assets, or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;such rights shall have otherwise expired; and
(vo) Legislation or Treasury Regulations shall have not been enacted or promulgated, the Equity Registration Rights AgreementIRS shall not have issued a private letter ruling which is available to the Parties, duly executed by Purchaser;revenue ruling, revenue procedure, announcement or notice, and there shall not have been a decision of a court of competent jurisdiction, that is reasonably likely to cause for Federal income tax purposes a result different for a Seller than the tax results contemplated in Section 6.12(b)(i) and 6.12(b)(ii) which is materially adverse to such Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (New York State Electric & Gas Corp)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained Section 4.01 and Section 4.04, the representations and warranties of Buyer contained in ARTICLE V of this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties shall of Buyer contained Section 4.01 and Section 4.04shall be true and correct only 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 or time), (except to the extent that any breaches of such those representations and warrantieswarranties that address matters only as of a specified date, individually or the accuracy of which shall be determined as of that specified date in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectall respects).
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser Sellers shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivd) stock certificates evidencing Buyer shall have delivered to each Seller an amount equal to such Seller’s Pro Rata Share of the Parent SharesClosing Cash Purchase Price in immediately available funds by wire transfer in immediately available funds, duly endorsed to an account or accounts designated at least five Business Days prior to the Closing Date by Sellers in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;a written notice to Buyer.
(ve) Buyer shall have delivered to Sellers such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate the Equity Registration Rights transactions contemplated by this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers each Seller to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser the Buyers contained in ARTICLE V Section 4.01, the representations and warranties of the Buyers contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of the Buyers contained in Section 4.01 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser The Buyers shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser The Escrow Agreement shall have delivered, or caused to be delivered, to Sellers:been executed and delivered by the Buyers and the Escrow Agent.
(d) (i) Parent Warrant A (including The Buyers shall have delivered to Sellers’ Representative the related warrant agreementClosing Payment pursuant to the Sellers’ Representative’s instructions pursuant to Section 2.03(a)(i), duly executed by Purchaser;
and (ii) Parent Warrant B (including the related warrant agreementBuyers shall have delivered to the Escrow Agent the Escrow Amount pursuant to Section 2.03(d), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate make the transactions contemplated by deliveries under this Agreement Article VII and to close this transaction are subject to the fulfillment or written waiver, prior to or at the Closing, Closing Date of each of the following conditions; provided, however, that in no event any one or more of which may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):be waived by Sellers:
(a) Each of the The representations and warranties of Purchaser contained Enterprises in ARTICLE V of this Agreement Article IV hereof shall be true in all material respects as of the date when made and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.date;
(b) Purchaser Enterprises shall have performed or and complied with in all material respects with all agreements and obligations conditions required by this Agreement to be performed or complied with by it prior to or at the Closing.Closing Date;
(c) Purchaser No Governmental Authority with competent jurisdiction over the subject matter hereof shall have deliveredinstituted any action, suit or caused proceeding or given notice of its intentions to be delivereddo so, to Sellers:
(i) Parent Warrant A (including which in the related warrant agreement), duly executed reasonable opinion of Sellers and their counsel has a material and adverse effect on the transactions contemplated by Purchaserthis Agreement;
(iid) Parent Warrant B (including The Coca-Cola Company shall have consented to the related warrant agreement), duly executed by Purchasertransactions contemplated hereby and to the assignment of the Bottling Authorizations and Licenses and shall have provided documentation with respect to the same reasonably satisfactory to Sellers;
(iiie) a certificate executed as All governmental approvals legally required for the consummation of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying transaction that the conditions have been set forth in Section 7.3(aon Disclosure Schedule 7.03(e) shall have been obtained, and Section 7.3(b) are satisfied;all applicable waiting periods pursuant to the HSR Act shall have expired or been terminated; and
(ivf) stock certificates evidencing the Parent SharesAll agreements, duly endorsed certificates, and other documents delivered by Enterprises to Sellers hereunder shall be in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;and substance reasonably satisfactory to Sellers.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Conditions to Obligations of Sellers. The obligations obligation of Sellers each Seller to sell the Purchased Interests and to consummate the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by such Seller) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Interests contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court or Governmental Authority which prevents the consummation of the sale of the Purchased Interests contemplated herein shall have been issued and remain in effect (each Party agreeing to use its Commercially Reasonable Efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Interests;
(c) Each Seller shall have received all of such Seller's Sellers' Required Regulatory Approvals, in form and substance reasonably satisfactory (including no materially adverse conditions as described in Section 9.1 (d)) to such Seller and such approvals shall be in full force and effect and either (i) shall be final and non-appealable or (ii) if not final and non-appealable, shall not be subject to the possibility of appeal, review or reconsideration which, in the reasonable opinion of such Seller (A) is likely to be successful and (B), if successful, would have a material adverse effect on the operations or conditions (financial or otherwise) of such Seller;
(d) Buyer shall have received all Buyer's Required Regulatory Approvals (other than those the failure of which to obtain could not reasonably be expected to result in a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller), none of such approvals shall contain any conditions that could reasonably be expected to result in a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller, and such approvals shall be in full force and effect and either (i) shall be final and non-appealable or (ii) if not final and non-appealable, shall not be subject to the possibility of appeal, review or reconsideration which, in the reasonable opinion of such Seller (A) is likely to be successful and (B) if successful, would have a material adverse effect on the business, assets, operations or condition (financial or otherwise) of such Seller;
(e) All consents and approvals for the consummation of the sale of the Purchased Interests contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which such Seller is party or -71- by which such Seller, or any of the NMP-2 Assets, may be bound, shall have been obtained, other than those which if not obtained, would not, individually and in the aggregate, create a material adverse effect on the operations or conditions (financial or otherwise) of such Seller;
(f) Buyer shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(g) The representations and warranties of Purchaser contained Buyer and Parent set forth in ARTICLE V of this Agreement that are qualified by materiality shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which all other representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements as of the Closing Date, in each case as though made at and obligations required by this Agreement to be performed or complied with by it prior to or at as of the Closing.Closing Date;
(ch) Purchaser Each Seller shall have received certificates from an authorized officer of Buyer and Parent, dated the Closing Date, to the effect that, to the knowledge of such officer(s) the conditions set forth in Sections 7.2(f) and (g) have been satisfied by Buyer and Parent;
(i) Effective upon Closing, Buyer shall have assumed, as set forth in Section 6.10, all of the applicable obligations under the IBEW Collective Bargaining Agreement;
(j) Sellers shall have received opinions from Buyer's and Parent's counsel reasonably acceptable to Sellers, dated the Closing Date and satisfactory in form and substance to Sellers and their counsel, substantially in the form of Exhibit K hereto;
(k) Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers at the related warrant agreement)Closing, duly executed by PurchaserBuyer's closing deliveries described in Section 3.7;
(iil) Parent Warrant B (including The liens of the related warrant agreement), duly executed by PurchaserMortgage Indentures on the NMP-2 Assets shall have been released and any documents necessary to evidence such release shall have been delivered to the title company;
(iiim) a certificate executed as The simultaneous sale to Buyer of NMP-l pursuant to the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfiedNMP-1 Asset Purchase Agreement shall have been completed;
(ivn) stock certificates evidencing Each of the Parent SharesCo-Tenants shall have waived, duly endorsed or provided written irrevocable notice that they will not exercise, any right of first refusal under the Operating Agreements to acquire the interests of Sellers in blank the NMP-2 Assets, or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;such rights shall have otherwise expired; and
(vo) Legislation or Treasury Regulations shall have not been enacted or promulgated, the Equity Registration Rights AgreementIRS shall not have issued a private letter ruling which is available to the Parties, duly executed by Purchaser;revenue ruling, revenue procedure, announcement or notice, and there shall not have been a decision of a court of competent jurisdiction, that is reasonably likely to cause for Federal income tax purposes a result different for a Seller than the tax results contemplated in Section 6.12(b)(i) and 6.12(b)(ii) which is materially adverse to such Seller.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer and DRH contained in ARTICLE V Section 5.01, Section 5.02, and Section 5.04, the representations and warranties of Buyer and DRH contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 Closing Date date hereof and as if of the Effective Time with the same effect as though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer and DRH contained in Section 5.01, Section 5.02, and Section 5.04 shall be true and correct only in all respects on and as of the date hereof and on and as of the Effective Time with the same effect as though made at and as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer and DRH shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer and DRH shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No Action shall have deliveredbeen commenced by any Person not a party to this Agreement against Buyer or Sellers, which would prevent the Closing. No injunction or caused to restraining order shall have been issued by any Governmental Authority, and be deliveredin effect, to Sellers:which restrains or prohibits any material transaction contemplated hereby.
(id) Parent Warrant A (including Buyer shall have delivered the related warrant agreementEscrow Amount to the Escrow Agent pursuant to Section 3.02(c), duly executed by Purchaser;.
(iie) Parent Warrant B (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of DRH certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of DRH authorizing the execution, duly endorsed delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by Buyer, DRH and their applicable Affiliates, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of DRH certifying the names and signatures of the officers of DRH and Buyer authorized to sign this Agreement, duly executed the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer and DRH shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Conditions to Obligations of Sellers. The obligations obligation of the Sellers to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to or at the Closing, of each Closing Date of the following additional conditions:
(a) the Buyer shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date;
(b) the representations and warranties of the Buyer set forth in this Agreement (after giving effect to any supplements pursuant to Section 7.9) shall be true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such date, except for representations and warranties which speak as of an earlier date or period which shall be true and correct as of such date or period; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each for purposes of the this clause, such representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be deemed to be true and correct (disregarding for unless the purpose failure or failures of all such determination representations and warranties to be so true and correct, without giving effect to any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of set forth in such representations and or warranties, would reasonably be expected, individually or in the aggregate, to have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.;
(c) Purchaser the Sellers shall have deliveredreceived a certificate from an authorized officer of the Buyer, or caused to be delivereddated the Closing Date, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying effect that the conditions set forth in Section 7.3(a8.3(a) and Section 7.3(b8.3(b) are hereof have been satisfied;
(ivd) stock certificates evidencing the Parent SharesSellers and their respective Affiliates shall have been fully and unconditionally released from any obligations under the Debt Service Reserve Letter of Credit and Buyer shall have provided evidence, duly endorsed in blank or accompanied by stock powers duly endorsed in blanksatisfactory to Sellers, in proper form for transferof the Replacement Letter of Credit including providing to Sellers, including any required stamps affixed theretoupon the delivery of a Replacement Letter of Credit, the Debt Service Reserve Letter of Credit, marked cancelled;
(ve) the Equity Registration Rights AgreementBuyer shall have made all deliveries required under Section 3.4; and
(f) the Buyer shall have (i) paid any amounts that may be outstanding or (ii) fully and unconditionally released Sellers and their respective Affiliates from any liability, duly executed by Purchaser;in each case (whether as a reimbursement obligation or otherwise) under the Debt Service Reserve Letter of Credit.
Appears in 1 contract
Samples: Limited Liability Company Membership Interests and Stock Purchase Agreement (Dynegy Holdings Inc)
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are Transaction shall be further subject to the fulfillment or the Sellers’ written waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The Buyers Fundamental Representations shall be (i) in the case of the such representations and warranties qualified by “materiality” or “Buyer Material Adverse Effect”, true and correct in all respects and (ii) in the case of Purchaser contained such representations and warranties not so qualified, true and correct in ARTICLE V all material respects, in the case of this Agreement each of clause (i) and (ii), at and as of the date hereof and as of the Closing Date with the same effect as though made at and as of such date (except for those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date). All other representations and warranties of the Buyers contained in Article IV shall be true and correct in all respects (disregarding for the purpose of such determination without giving effect to any qualification limitation as to materiality “materiality” or Purchaser “Buyer Material Adverse Effect” set forth therein) at and as of the date hereof and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects (without giving effect to any limitation as to “materiality” or “Buyer Material Adverse Effect” set forth therein) as of such date or timethat specified date), except to where the extent that any breaches failure of such other representations and warrantieswarranties to be true and correct would not have, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Buyer Material Adverse Effect.
(b) Purchaser The Buyers shall have duly performed or and complied in all material respects with all agreements and obligations covenants required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser The Sellers shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of Purchaserthe Buyers, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of the Sellers to consummate the transactions to be performed by and in connection with the Closing is subject to satisfaction of the following conditions:
(a) The representations and warranties of Purchaser set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date;
(b) The Purchaser shall have performed and complied with all of its covenants hereunder in all material respects through the Closing Date;
(c) No action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction, nor shall Purchaser or Sellers have received any written threat of any such action, suit or proceeding, wherein an unfavorable judgment, order, decree, stipulation, injunction, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement are subject to be rescinded following consummation (and no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(d) The Purchaser shall have delivered to the fulfillment or written waiver, prior Sellers a certificate to or at the Closing, of effect that each of the following conditions; provided, however, that conditions specified above in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
subparagraphs (a) Each through (c) above is satisfied in all respects;
(e) If applicable, the waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act of 1976 shall have expired or otherwise been terminated;
(f) If applicable, all approvals shall have been received and all waiting periods (and any extensions thereof) shall have expired pursuant to the requirements of the representations insurance laws and warranties regulations of the states of Alabama, Missouri and Kansas;
(g) The Sellers and Purchaser contained shall have entered into the Reinsurance Treaties in ARTICLE V of this substantially the form attached hereto as Schedule 7.04(a) and Schedule 7.04(b), and said Treaties shall continue to be in effect on the Effective Date;
(h) The Sellers and Purchaser shall have entered into the Management Agreement in the form attached hereto as Schedule 7.06 and such Agreement shall be true and correct (disregarding for in effect on the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.Effective Date;
(bi) Purchaser shall have performed or complied delivered an opinion of its counsel, Xxxx & Xxxxxx LLP, addressed to Sellers and to the reasonable satisfaction of Sellers as to the matters addressed in all material respects with all agreements Sections 5.01 (excluding qualification as a property and obligations required by this Agreement casualty insurer in states other than Alabama, Missouri, and Kansas), 5.02, 5.03 and 5.07; and
(j) All actions to be performed or complied taken by the Purchaser in connection with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as consummation of the Closing Date by a duly authorized representative of Purchasertransactions contemplated hereby and all certificates, on behalf of Purchaser opinions, instruments, and not other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in such authorized representative’s individual capacity, certifying that form and substance to the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Sellers.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medical Defense Holding Co)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction (or written waiver, prior to or at the Closing, of each waiver by Seller) of the following further conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each Purchaser shall have performed in all respects all of its obligations and agreements hereunder required to be performed by it at or prior to the Closing Date;
(b) the representations and warranties of Purchaser contained set forth in ARTICLE V of this Agreement shall Section 4 (i) that are not qualified by materiality qualifiers will be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date (disregarding for except to the purpose extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such determination any qualification as to earlier date) and (ii) that are qualified by materiality or Purchaser qualifiers will be true and correct in all respects (without disregarding such Material Adverse EffectEffect or other materiality qualifiers qualifications) as of the Closing Date as if made on such date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), the Closing Date (except to the extent that any breaches such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.earlier date);
(c) Purchaser shall have delivered, or caused delivered to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as Sellers all of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions items set forth in Section 7.3(a) and Section 7.3(b) are satisfied2.9;
(ivd) stock certificates evidencing Sellers shall have received an amount in cash sufficient to fund the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;Budgeted Reserve to the extent Sellers’ cash on hand at closing is insufficient to fund the Budgeted Reserve; and
(ve) Sellers shall have received all documents they may reasonably request relating to the Equity Registration Rights existence of Purchaser and the authority of Purchaser for this Agreement, duly executed by Purchaser;all in form and substance reasonably satisfactory to Sellers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiverwaiver by the Stockholder Representative, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01 and Section 5.03, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser Buyer Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Buyer Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 5.01 and Section 5.03 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(d) All approvals, consents and waivers of the Buyer’s principal secured lender shall have been received, and executed counterparts thereof shall have been delivered to the Company at or prior to the Closing.
(ce) Purchaser Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as delivered each of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions closing deliverables set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;2.03(b).
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by under this Agreement are subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that but compliance with any such conditions may be waived by Sellers in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):writing:
(a) Each of the all representations and warranties of Purchaser Buyers contained in ARTICLE V this Agreement were, as of the date of this Agreement Agreement, and shall have been true and correct in all material respects (provided that any representation or warranty of Sellers contained herein that is subject to a materiality, Material Adverse Change or similar qualification shall have been true, accurate and complete in all respects for purposes of determining the existence of any breach thereof on the part of Sellers or the Companies) at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (except for any representation or warranty made or given as of a specific date, which will be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or timespecified date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.;
(b) Purchaser Buyers shall have performed or and complied in all material respects with all the covenants and agreements and obligations required by this Agreement to be performed or complied with by it Buyers in all material respects at or prior to or at the Closing., including the delivery of all items required to be delivered by Buyers pursuant to Section 1.6;
(c) Purchaser the waiting period (and extensions thereof) applicable to the consummation of the Contemplated Transactions under the HSR Act shall have delivered, expired or caused to be delivered, to Sellers:been terminated and any similar waiting period under any applicable foreign antitrust law or regulation set forth on Schedule 4.7 shall have expired or been terminated; and
(id) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of PurchaserDate, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank there shall be no pending or accompanied by stock powers duly endorsed in blankthreatened, in proper form for transferwriting, including Litigation and no notice of an intent to commence Litigation by any required stamps affixed thereto;
(v) Person seeking to enjoin any material aspect of the Equity Registration Rights operation of the Business or the consummation of the transactions contemplated by this Agreement, duly executed by Purchaser;or otherwise materially affecting the Companies, the Company Subsidiaries or the Business.
Appears in 1 contract
Samples: Purchase Agreement (Fossil Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment satisfaction or written waiver, waiver in writing (if permitted by applicable Law) at or prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser contained Buyer set forth in ARTICLE V Section 5.1 (Organization and Good Standing) and Section 5.2 (Authorization of this Agreement shall Agreement) must be true and correct in all respects as of the date of this Agreement and as of Closing Date as though made on and as of the Closing Date, and (disregarding for ii) the purpose other representations and warranties of such determination Buyer set forth in ARTICLE V must be true and correct in all but de minimis respects (without giving effect to any qualification materiality qualifications contained therein) as to materiality or Purchaser Material Adverse Effect) of the date of this Agreement and as of Closing Date as though made on and as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches expressly made as of an earlier date, in which case as of such date), except, in the case of clause (ii), where the failure of such representations and warrantieswarranties to be so true and correct would not have, individually or in the aggregate, have not had, or and would not reasonably be expected to have, a Purchaser Buyer Material Adverse Effect. Buyer shall have delivered to Sellers’ Representative a certificate dated as of the Closing Date and signed by an authorized officer of the Buyer confirming the foregoing under this Section 8.1(a) (the “Buyer Bring-Down Certificate”).
(b) Purchaser shall Buyer must have performed or and complied in all material respects with all agreements covenants and obligations required by this Agreement to be performed or complied with by it under this Agreement prior to or at the Closing.
(c) Purchaser shall Buyer must have delivered, delivered or caused to be delivered, delivered to Sellers:Sellers the items required by Section 2.4(c).
(id) Parent Warrant A (including Since the related warrant agreement)date of this Agreement, duly executed by Purchaser;there shall not have occurred any Buyer Material Adverse Effect.
(iie) Parent Warrant B There shall not be in effect any Order, injunction (including whether temporary, preliminary or permanent) or other legal restraint or prohibition issued by any court or Governmental Authority of competent jurisdiction that has the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as effect of making the consummation of the Closing Date by a duly authorized representative transactions contemplated hereby illegal or otherwise prohibiting the consummation of Purchaserthe transactions contemplated hereby and there shall not be any Law or Order enacted, on behalf entered, enforced or deemed applicable to the transactions contemplated hereby which makes the consummation of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;transactions contemplated hereby illegal.
Appears in 1 contract
Samples: Stock Purchase Agreement (Grocery Outlet Holding Corp.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser contained made by Buyer in ARTICLE V of this Agreement or in any Ancillary Document shall be true and correct (disregarding for in all respects, in each case as of the purpose Agreement Date and as of the Closing Date, with the same force and effect as though all such determination any qualification as to materiality or Purchaser Material Adverse Effect) representations and warranties had been made as of the Closing Date as if made on such date (except for other than representations and warranties that speak by their terms address matters only as of a specific date or timeanother specified date, which representations and warranties shall be so true and correct only as of such date or timeother specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected to have, have a Purchaser Material Adverse Effect.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 5.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser Sellers shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a8.03(a) and Section 7.3(b8.03(b) are satisfied;have been satisfied (the “Buyer Closing Certificate”).
(ivf) stock certificates evidencing Sellers shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby and thereby.
(vg) Sellers shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed by Purchaser;the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(h) Buyer shall have delivered such other documents and deliveries set forth in Section 3.02(b).
(i) Buyer shall use good faith efforts to close no later than May 16, 2019.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V of this Agreement IV shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of such date or timethat specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected have a material adverse effect on Buyer's ability to have, a Purchaser Material Adverse Effectconsummate the transactions contemplated hereby.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or at on the ClosingClosing Date.
(c) Purchaser Sellers’ Representative shall have deliveredreceived a certificate, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.03(a) and Section 7.3(b6.03(b) are have been satisfied;.
(ivd) stock certificates evidencing Sellers’ Representative shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed thereto;connection with the transactions contemplated hereby.
(ve) Sellers’ Representative shall have received a certificate of the Equity Registration Rights Agreement, duly Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement and the other documents to be delivered hereunder.
(f) Xxxxx shall have delivered to Sellers’ Representative executed by Purchaser;copies of each of the Transaction Documents.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Cannapharmarx, Inc.)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that unless Sellers shall waive such fulfillment in no event may Sellers waive the conditions contained whole or in Section 7.3(h) or Section 7.3(i):part in writing:
(a) Each This Agreement and the transactions contemplated hereby shall have received all approvals, consents, authorizations, and waivers from governmental and other regulatory agencies and other third parties (including lenders, holders of debt securities, and lessors) required by law or contract to consummate this Agreement and required to keep all agreements and licenses held by the Company in full force and effect after the Closing including, without limitation, the consents listed on Schedule 4.3;
(b) There shall not be in effect a restraining order, a preliminary or permanent injunction or other order by any federal or state authority which prohibits the consummation of this Agreement and no action or proceeding shall have been instituted and remain pending before any court seeking such relief or seeking damages in respect to this Agreement or the consummation of the transactions contemplated by this Agreement;
(c) Purchaser shall have performed in all material respects its agreements, covenants and obligations contained in this Agreement required to be performed at or prior to the Closing;
(d) The representations and warranties of Purchaser contained set forth in ARTICLE V of this Agreement shall be true in all material respects as of the Effective Date and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time;
(e) Sellers shall have received from Purchaser an officers' certificate, executed by an authorized officer of Purchaser (in his capacity as such), except dated the Closing Date, as to the extent that any breaches satisfaction of the conditions stated in Sections 8.1(c) and (d) above (to the best knowledge of such representations officer where appropriate);
(f) Sellers shall have received, on and warrantiesas of the Closing Date, individually or an opinion of Counsel to Purchaser, substantially in the aggregateform of opinion set forth in Exhibit B attached hereto and such other closing documents and instruments as Sellers shall reasonably require, have not had, or would not in each case reasonably be expected satisfactory in form and substance to have, a Purchaser Material Adverse EffectCounsel to Sellers.
(bg) At or prior to the Closing, Purchaser shall have performed or complied enter into a Consulting Agreement in all material respects with all agreements the form of Exhibit C attached hereto, between Purchaser and obligations required by this Jamex X. Xxxxxx, X.D. (the "Greexx Xxxsulting Agreement"); provided, however, that the execution and delivery of the Greexx Xxxsulting Agreement to shall be performed or complied with by it prior to or at the Closingsole election of Jamex X. Xxxxxx, X.D. and, in the event he elects not to execute such Consulting Agreement, then the execution and delivery of the Greexx Xxxsulting Agreement by Purchaser shall not constitute a condition to the obligations of the Sellers under this agreement.
(ch) Purchaser At or prior to the Closing, the Company shall have deliveredpay in full those certain monetary obligations owed by the Company to Jamex X. Xxxxxx, or caused X.D. described in Schedule 8.1(h) which monetary obligations are also reflected on the Company Balance Sheet. The amount of all payments required to fully satisfy such monetary obligations shall be delivered, to Sellers:credited against and reduce the $5,100,000 amount for the purpose of determining the Purchase Price as specified in Section 2.2 of this Agreement.
(i) Parent Warrant A At or prior to the Closing, Purchaser shall perform the respective obligations of and the actions to be taken by Purchaser at the Closing as described in Section 10.3 of this Agreement.
(including j) On or prior to the related warrant agreement)Closing, duly executed by Purchaser;
the Company and Ramsay Healthcare, Inc. shall have renewed and extended on terms and conditions satisfactory to Purchaser in its sole discretion those two certain Management Contracts relating to mental health treatment units and programs in hospitals located in Mesa, Arizona and Nevada, Missouri listed on Schedule 4.13. In the event that either or both of such contracts cannot be renewed to the satisfaction of the Purchaser and Seller is unable to provide one or more replacement contracts acceptable to Purchaser in its sole discretion prior to Closing, then Purchaser shall have the right to (i) terminate the Agreement, (ii) Parent Warrant B (including waive the related warrant agreement), duly executed by Purchaser;
condition to provide renewals or replacement contracts for the Ramsay contracts without a reduction in the Purchase Price or (iii) propose a certificate executed as reduction in the Purchase Price equal to not more than $300,000 for each Ramsay contract which is not renewed or replaced. If Purchaser proposes a reduction in the Purchase Price of any amount due to the Closing Date by a duly authorized representative of PurchaserRamsay contracts not being renewed or replaced, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;Seller shall have the
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Mental Health Management Inc)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h: (i) or Section 7.3(i):
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.1 and Section 4.6, the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Agreements and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.1 and Section 4.6 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(bj) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to which Buyer is a party to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(k) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(l) All necessary FINRA approvals, consents and waivers shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(cm) Purchaser The Ancillary Agreements shall have delivered, or caused to be delivered, been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(in) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied. 24 (o) Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are satisfied;
true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements 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. (ivp) stock certificates evidencing Sellers shall have received a certificate of the Parent Shares, duly endorsed in blank Secretary or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
an Assistant Secretary (vor equivalent officer) of Buyer certifying the Equity Registration Rights names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed by Purchaser;the Ancillary Agreements and the other documents to be delivered hereunder and thereunder.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Parent and Purchaser contained in ARTICLE V of this Agreement Article IV shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all respects as of the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of such date or timethat specified date), except to where the extent that any breaches failure of such representations and warranties, individually or in the aggregate, have not had, or warranties to be true and correct would not reasonably be expected have a material adverse effect on Parent’s and Purchaser’s ability to have, a Purchaser Material Adverse Effectconsummate the transactions contemplated hereby.
(b) Parent and Purchaser shall have performed made or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have deliveredtendered, or caused to be deliveredmade or tendered, to Sellersdelivery of the amounts required by, and in accordance with, Section 2.05 and the following documents:
(i) Parent Warrant A (including the related warrant agreement), a duly executed by Purchasercounterparty signature page to each of the Transaction Documents to which Parent or Purchaser is a party;
(ii) Parent Warrant B (including the related warrant agreement), a duly executed by Purchaser;counterparty signature page to the Registration Rights Agreement; and
(iii) a certificate executed as of the Closing Date Secretary or an Assistant Secretary (or equivalent officer) of Parent certifying (A) that attached thereto are true and complete copies of all resolutions adopted by a duly authorized representative the board of Purchaserdirectors of Parent authorizing the execution, on behalf delivery and performance of this Agreement by Parent and Purchaser and not the consummation by Parent and Purchaser of the transactions contemplated hereby, and that all such resolutions are in such authorized representative’s individual capacityfull force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby, certifying (B) that each of the conditions set forth in Section 7.3(a6.03(a) and Section 7.3(b6.03(b) are have been satisfied;
, and (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(vC) the Equity Registration Rights Agreement, duly executed by Purchaser;names and signatures of the officers of Parent and Purchaser authorized to sign this Agreement and the other documents to be delivered hereunder.
Appears in 1 contract
Samples: Unit Purchase and Sale Agreement (Local Bounti Corporation/De)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the representations Purchaser shall have performed and warranties of complied with all agreements and covenants required to be performed and complied with by Purchaser contained in ARTICLE V of under this Agreement shall be true and correct (disregarding for at or prior to the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (Closing, except for representations and warranties that speak such non-performance or non-compliance as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warrantieswould not, individually or in the aggregate, have not had, or would materially affect its ability to perform its obligations hereunder and are not reasonably be expected likely to haveprohibit, a Purchaser Material Adverse Effectrestrict or delay the performance of this Agreement by Purchaser.
(b) The warranties of Purchaser in Article III of this Agreement that are qualified as to materiality shall have performed or complied be true and correct, and those that are not so qualified shall be true and correct in all material respects at and as of the date hereof and at and as of the Closing Date (except in the case of any warranty that by its terms is made as of a date specified therein, in which case any such warranty that is qualified as to materiality shall be true and correct, and any such warranty not so qualified shall be true and correct in all material respects, as of such date), except where the failure of such warranties to be in compliance with all agreements the standard set forth above in this clause 5.01(b) would not materially affect its ability to perform its obligations hereunder and obligations are not reasonably likely to prohibit, restrict or delay the performance of this Agreement by Purchaser.
(c) Sellers shall have received, in the aggregate, the Purchase Price in the manner set forth in Section 1.04(b).
(d) Sellers shall have received from Purchaser a certificate signed by an appropriate officer of Purchaser as to Purchaser’s compliance with the conditions set forth in clauses (a) and (b) of this Section 5.01.
(e) No Law shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated hereby and no Judgment shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby.
(f) All material filings required by any Governmental Authority under applicable Laws contemplated by this Agreement shall have been made and any required waiting period under such Laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(g) All Scheduled Consents shall have been obtained, given or made.
(h) Sellers shall have received from Purchaser:
(i) a copy of the resolutions of the board of directors of Purchaser approving the transactions contemplated by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have deliveredPurchaser, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed certified by Purchaser;
(ii) Parent Warrant B (including a certified copy of the related warrant agreement)certificate of incorporation for Purchaser, duly executed by Purchaser;as of or about the Closing Date; and
(iii) a certificate executed as copy of the Closing Date by a duly authorized representative constitution of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;certified by Purchaser.
(ivi) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, Sellers shall have received from Purchaser counterparts of each Ancillary Agreement duly executed by Purchaser;.
(j) Gurcke shall have received from Purchaser the Subordinated Note. All certificates, instruments, and other documents contemplated hereby and required to be delivered by Purchaser to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Sellers.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ Representative’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 5.01, Section 5.02, Section 5.03, Section 5.04, and Section 5.05 (collectively, the “Buyer Fundamental Representations” and collectively with the Seller Fundamental Representations, the “Fundamental Representations”), the representations and warranties of Buyer contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in the Buyer Fundamental Representations shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.date;
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or at on the Closing.Closing Date;
(c) Purchaser no injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaserprohibits any material transaction contemplated hereby;
(iid) Parent Warrant B (including Xxxxx shall have delivered to Sellers’ Representative xxxx executed counterparts to the related warrant agreementAncillary Documents and such other documents and deliveries set forth in Section 3.02(b), duly executed by Purchaser;
(iiie) Buyer or its Affiliate shall offer employment, on an “at will” basis, to all the Transferred Employees in accordance with the provisions of Section 6.05;
(f) Sellers’ Representative shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are satisfiedhave been satisfied (the “Buyer Closing Certificate”);
(ivg) stock certificates evidencing Sellers’ Representative shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in blank or accompanied by stock powers duly endorsed full force and effect and are all the resolutions adopted in blank, in proper form for transfer, including any required stamps affixed theretoconnection with the transactions contemplated hereby and thereby;
(vh) Sellers’ Representative shall have received a certificate of the Equity Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, duly executed the Ancillary Documents, and the other documents to be delivered hereunder and thereunder; and
(i) Buyer shall have delivered to Sellers’ Representative such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by Purchaser;this Agreement.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are further subject to the fulfillment satisfaction (or written waiver, ) at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of the The representations and warranties of Purchaser Buyer contained in ARTICLE V Article IV of this Agreement that are (i) qualified as to Buyer Material Adverse Effect shall be true and correct and (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effectii) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties not so qualified shall be true and correct only in all material respects (except for breaches as of such date or time), except to the extent that any breaches of such representations and warrantiesmatters that, individually or in the aggregate, have not had, or would could not reasonably be expected to have, have a Purchaser Buyer Material Adverse Effect), in each case, as of the date of this Agreement and as of the Closing as if made at and as of such time (PROVIDED, HOWEVER, that representations and warranties which are as of a specific date shall speak only as of such date). Sellers shall have received a certificate dated as of the Closing Date executed by an officer of Buyer to such effect.
(b) Purchaser Buyer shall have performed or complied in all material respects with all agreements and its obligations required by under this Agreement required to be performed or complied with by it at or prior to or at the Closing.
(c) Purchaser Closing pursuant to the terms of this Agreement, and Sellers shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) received a certificate executed dated as of the Closing Date executed by a duly authorized representative an officer of Purchaser, on behalf of Purchaser and not in Buyer to such authorized representative’s individual capacity, certifying that the conditions effect;
(c) Buyer shall have delivered to Sellers or their Affiliates those items set forth in Section 7.3(a) and Section 7.3(b) are satisfied;1.7 of this Agreement; and
(ivd) stock certificates evidencing Except for any applicable Taxes, no state governmental authority or other state regulatory body shall have initiated a formal legal or administrative proceeding with respect to the Parent Sharestransactions contemplated by this Agreement that would reasonably be expected to, duly endorsed individually or in blank aggregate, have a material adverse effect on the business of Sprint Local Telecommunications Division or accompanied on the proceeds Sprint expects to receive from the transactions contemplated by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 3.01 and Section 3.04 (the “Buyer Fundamental Representations,” and collectively with the Seller Fundamental Representations, the “Fundamental Representations”), the representations and warranties of Buyer contained in this Agreement Agreement, Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which representations and warranties in all respects). The Buyer Fundamental Representations shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or at on the ClosingClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) Purchaser No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority, and be in effect, which restrains or caused to be delivered, prohibits any material transaction contemplated hereby.
(d) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:.
(ie) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a6.03(a) and Section 7.3(b6.03(b) are have been satisfied;.
(ivf) stock certificates evidencing Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the Parent Shares, duly endorsed in blank or accompanied transactions contemplated by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights this Agreement, duly executed by Purchaser;.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment on or written waiver, prior to or at the Closing, of each Closing Date of the following conditions; provided, however, that unless the Sellers shall waive such fulfillment in no event may Sellers waive the conditions contained whole or in Section 7.3(h) or Section 7.3(i):part in writing:
(a) Each of the The representations and warranties of Purchaser contained set forth in ARTICLE V of this Agreement shall be true and correct (disregarding for at and as of the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) Effective Date and shall also be true and correct at and as of the Closing Date as if though made on such date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)the Closing Date, except to the extent that any breaches of such representations and warrantieswarranties are not true and correct by reason of actions permitted or authorized by this Agreement or consented to in writing by Seller. Seller shall have received a certificate of Purchaser, individually dated the Closing Date and duly executed by its chief executive officer or in the aggregateits principal financial officer, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectsuch effect.
(b) Purchaser shall have performed or complied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to or at the ClosingClosing Date.
(c) Purchaser No inquiry by any governmental agency or instrumentality shall have deliveredbeen made which would or could, and no action or proceeding shall have been asserted, threatened or instituted, and no decree, injunction, or caused to be deliveredjudgment shall have been entered, to Sellers:restrain or prohibit the carrying out of the transactions contemplated by this Agreement or any part thereof, or to recover damages with respect thereto, or which, if such transactions are consummated, would materially and adversely affect the business, properties or assets of the Company.
(id) Parent Warrant A All consents, waivers or approvals from any third party (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;consents of third parties under the Customer Contracts and any federal, state or local governmental agency or instrumentality consents) as may be necessary or appropriate in connection with Seller's or the Company's execution and delivery of this Agreement or to the consummation of the transactions contemplated hereby shall have been obtained.
(ve) The Sellers shall have received such other certificates, opinions, and documents as the Equity Registration Rights Agreement, duly executed by Purchaser;Sellers or their counsel may reasonably require in order to consummate the transactions contemplated hereby all of which shall be in form and substance reasonably satisfactory to the Sellers and their counsel.
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Health Corp /De/)
Conditions to Obligations of Sellers. The obligations obligation of Sellers to consummate effect the sale of the Purchased Assets and the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Assets contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of the Purchased Assets contemplated herein shall have been issued and remain in effect (each Party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Assets;
(c) Sellers shall have received all of Sellers' Required Regulatory Approvals applicable to them, in form and substance reasonably satisfactory (including no materially adverse conditions) to Sellers and either (i) final and not subject to further rights of review or appeal, or (ii) if not final and non-appealable, shall not be subject to any pending or overtly threatened appeal or request for review or reconsideration which, if adversely determined, would be reasonably expected to have a material adverse effect on Sellers;
(d) All consents and approvals for the consummation of the sale of the Purchased Assets contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Sellers are party or by which Sellers, or any of the Purchased Assets, may be bound, shall have been obtained, other than those which if not obtained, would not, individually and in the aggregate, create a Material Adverse Effect;
(e) Buyer shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(f) The representations and warranties of Purchaser contained in ARTICLE V of this Agreement Buyer that are qualified by materiality shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which all other representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Purchaser shall have performed or complied in all material respects with all agreements as of the Closing Date, in each case as though made at and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by unless otherwise specified herein to the contrary;
(g) Sellers shall have received a duly certificate from an authorized representative officer of PurchaserBuyer, on behalf of Purchaser and not in dated the Closing Date, to the effect that, to such authorized representative’s individual capacityofficer's Knowledge, certifying that the conditions set forth in Section 7.3(aSections 7.2(e) and Section 7.3(b(f) are satisfiedhave been satisfied by Buyer;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiverwaiver of Sellers’ Representative, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each of Other than the representations and warranties of Purchaser Buyer contained in ARTICLE V Section 4.01 and Section 4.04, the representations and warranties of Buyer contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purpose case of such determination any qualification as to representation or warranty qualified by materiality or Purchaser 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 if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date or time, which in all respects). The representations and warranties of Buyer contained in Section 4.01 and Section 4.04 shall be true and correct only 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 or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effectdate.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 4.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Seller at or prior to the Closing.
(ce) Purchaser The other Transaction Documents shall have delivered, or caused to be delivered, been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Sellers:’ Representative.
(if) Parent Warrant A (including the related warrant agreement)Sellers’ Representative shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a7.03(a) and Section 7.3(b7.03(b) are have been satisfied;.
(ivg) stock certificates evidencing Sellers’ Representative shall have received a certificate of the Parent SharesSecretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, duly endorsed 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 blank full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(h) Sellers’ Representative shall have received a certificate of the Secretary or accompanied an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(i) Buyer shall have issued the Q2 Stock Consideration to the Sellers, less the Earnout Shares and Escrow shares, pursuant to each Sellers’ Allocation Percentage.
(j) Buyer shall have issued the Q2 Promissory Note(s).
(k) Buyer shall have delivered to Seller such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate the transactions contemplated by stock powers duly endorsed in blank, in proper form for transferthis Agreement, including any required stamps affixed thereto;
executed copies of the documents referenced in Sections 7.02(l), (vm), (q) the Equity Registration Rights Agreement, duly executed by Purchaser;and (r).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Q2Earth Inc.)
Conditions to Obligations of Sellers. The obligations obligation of Sellers and GPU to consummate effect the sale of the Purchased Assets and the other transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to the Closing Date (or at the Closing, of each waiver by Sellers) of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i)::
(a) Each The waiting period under the HSR Act applicable to the consummation of the sale of the Purchased Assets contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of the Purchased Assets contemplated herein shall have been issued and remain in effect (each Party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the sale of the Purchased Assets;
(c) Sellers and GPU shall have received all of Sellers' Required Regulatory Approvals applicable to them, containing no conditions or terms which would materially diminish the benefit of this Agreement to Sellers or result in a material adverse effect on the business, assets, operations or condition (financial or otherwise) of Sellers ("Sellers' Material Adverse Effect");
(d) All consents and approvals for the consummation of the sale of the Purchased Assets contemplated hereby required under the terms of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which any Seller is party or by which any Seller, or any of the Purchased Assets, may be bound, shall have been obtained, other than those which if not obtained, would not, individually and in the aggregate, create a Material Adverse Effect;
(e) Buyer shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which are required to be performed and complied with by Buyer on or prior to the Closing Date;
(f) The representations and warranties of Purchaser contained Buyer set forth in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) in all material respects as of the Closing Date as if though made on such date (except for representations at and warranties that speak as of the Closing Date;
(g) Sellers shall have received a specific date certificate from an authorized officer of Buyer, dated the Closing Date, to the effect that, to such officer's Knowledge, the conditions set forth in Sections 7.2(e) and (f) have been satisfied by Buyer;
(h) Effective upon Closing, Buyer shall have assumed, as set forth in Section 6.10, all of the applicable obligations under the Collective Bargaining Agreement as they relate to Transferred Union Employees;
(i) Sellers and GPU shall have received an opinion from Buyer's counsel reasonably acceptable to Sellers, dated the Closing Date and satisfactory in form and substance to Sellers and its counsel, substantially to the effect that:
(i) Buyer is a Delaware corporation duly organized, validly existing and in good standing under the laws of the state of its organization and is qualified to do business in the State of New Jersey and Commonwealth of Pennsylvania and has the full corporate power and authority to own, lease and operate its material assets and properties and to carry on its business as is now conducted, and to execute and deliver the Agreement and the Ancillary Agreements by Buyer and to consummate the transactions contemplated thereby; and the execution and delivery of the Agreement and the Ancillary Agreements by Buyer and the consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate action required on the part of Buyer;
(ii) The Agreement and the Ancillary Agreements have been duly and validly executed and delivered by Buyer, and constitute legal, valid and binding agreements of Buyer, enforceable against Buyer, in accordance with their terms, except that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or timeother similar laws affecting or relating to enforcement of creditor's rights generally and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity);
(iii) The execution, which representations delivery and warranties shall be true performance of the Agreement and correct only the Ancillary Agreements by Buyer do not (A) conflict with the Certificate of Incorporation or Bylaws (or other organizational documents), as currently in effect, of Buyer or (B) to the knowledge of such date counsel, constitute 77 a violation of or time), except default under those agreements or instruments set forth on a Schedule attached to the extent that any breaches opinion and which have been identified to such counsel as all the agreements and instruments which are material to the business or financial condition of such representations Buyer;
(iv) The Assignment and warrantiesAssumption Agreement and other transfer instruments described in Section 3.7 are in proper form for Buyer to assume the Assumed Liabilities; and
(v) No consent or approval of, individually or in the aggregate, have not hadfiling with, or would notice to, any Governmental Authority is necessary for Buyer's execution and delivery of the Agreement and the Ancillary Agreements, or the consummation by Buyer of the transactions contemplated hereby and thereby, other than such consents, approvals, filings or notices, which, if not reasonably be expected to haveobtained or made, a Purchaser Material Adverse Effectwill not prevent Buyer from performing its respective obligations under the Agreement, the Ancillary Agreements and Guaranty.
(bj) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Purchaser Buyer shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including Sellers at the related warrant agreement)Closing, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth Buyer's closing deliveries described in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;3.7.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Sellers’ waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the The representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall Buyer be true and correct in all respects (disregarding for the purpose of such determination without regard to any qualification as qualifications or references to materiality or Purchaser Material Adverse Effect) , “material”, or any other materiality qualifications references contained in any specific representation or warranty), in each case on and as of the Effective Date and the Closing Date with the same effect as if though made on at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date or timein all respects), except to where the extent that any breaches failure of such representations and warrantieswarranties to be so true and correct would not, individually or in the aggregate, have not had, constitute or would not reasonably be expected to have, result in a Purchaser Material Adverse Effect. Sellers hereby acknowledge that Buyer shall have the right to update any representation and warranty given pursuant to Article V herein at any time after the Effective Date through an update to the Disclosure Schedules, any such update a “Buyer’s Disclosure Schedule Update.” If the Closing occurs, any such representation and warranty shall be amended by such Buyer Disclosure Schedule Update.
(b) Purchaser Buyer shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) All deliveries required to be made at Closing by Buyer pursuant to Section 2.04(a) shall have been made.
(d) All approvals, consents and waivers that are listed on Section 5.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Sellers at or prior to the Closing.
(ce) Purchaser Sellers shall have deliveredreceived evidence of the procurement by Buyer of a Directors and Officers insurance tail of no less than 6 years covering the Company’s officers and directors, or caused to the cost of which shall be delivered, to Sellers:borne by Buyer.
(if) Parent Warrant A (including the related warrant agreement)Sellers shall have received a certificate, duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of dated the Closing Date and signed by a duly authorized representative officer of PurchaserBuyer, on behalf that each of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(aSections 7.03(a) and Section 7.3(b(b) are have been satisfied;.
(ivg) stock certificates Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the managers of Buyer authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(h) Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder.
(i) Buyer shall have delivered a certificate evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) Buyer Shares to the Equity Registration Rights Agreement, duly executed by Purchaser;Escrow Agent.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.)
Conditions to Obligations of Sellers. The Each and every obligation of Sellers under this Agreement (except for the obligations of Sellers to be fulfilled prior to the Closing and obligations that survive termination of this Agreement), including the obligation of Sellers to consummate the transactions contemplated by this Agreement are Closing, shall be subject to the fulfillment satisfaction, on or written waiver, prior to or at before the Closing, of each of the following conditions; providedconditions set forth in this Section 7.3, however, that unless waived in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):writing by Sellers.
(a) Each Buyer shall have obtained at its own expense (and shall have provided copies thereof to Sellers) all of the representations waivers, permits, consents, approvals or other authorizations, and warranties effected all of Purchaser contained in ARTICLE V the registrations, filings and notices, as contemplated by Section 5.2, with respect to Governmental Entities, which are required on the part of this Agreement shall Buyer, except for (i) any waivers, permits, consents, approvals, licenses or other authorizations which may be true and correct (disregarding for the purpose of such determination any qualification as delivered or issued subsequent to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on pursuant to applicable law, rule or regulation relating to such date waiver, permit, consent, approval, license or other authorization; and (except for representations and warranties that speak as ii) any failure to provide the appropriate notice or obtain the appropriate permit, authorization, consent or approval, or where any such conflict, breach, default, acceleration, termination, modification or cancellation, or any such imposition of a specific date or timeany Security Interest, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have has not had, had or would not reasonably be expected to have, individually or in the aggregate, a Purchaser Buyer Material Adverse Effect.Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) Purchaser The representations and warranties of Buyer set forth in this Agreement that are qualified as to materiality shall be true and correct and the representations and warranties of Buyer that are not qualified as to materiality shall be true and correct in all material respects, in each case, as of the Closing as though made as of the Closing, provided that, to the extent that any such representation or warranty speaks as of a specified date it need only be true and correct as of such specified date;
(c) Buyer shall have performed or complied with in all material respects with all its agreements and obligations covenants required by this Agreement to be performed or complied with by it under this Agreement as of or prior to or at the Closing.;
(cd) Purchaser No Legal Proceeding shall have deliveredbe pending or threatened wherein an unfavorable judgment, order, decree, stipulation or caused to be delivered, to Sellers:
injunction would (i) Parent Warrant A prevent consummation of the transactions contemplated by this Agreement, or (including ii) cause the related warrant agreement), duly executed transactions contemplated by Purchaserthis Agreement to be rescinded following consummation;
(iie) Parent Warrant B (including Buyer shall have delivered to Sellers the related warrant agreement), duly executed by PurchaserBuyer Certificate;
(iiif) a certificate executed Sellers shall have received such other certificates and instruments (including certificates of good standing of Buyer in its jurisdiction of organization, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as they shall reasonably request in connection with the Closing;
(g) Buyer is ready to deliver the Closing Date Aggregate Purchase Price by a duly authorized representative of Purchaser, on behalf of Purchaser and not wire transfer to Sellers in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;immediately available funds.
Appears in 1 contract
Conditions to Obligations of Sellers. The obligations of Sellers to consummate at the transactions contemplated by this Agreement Closing are subject to the fulfillment satisfaction, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive which shall be deemed satisfied upon the conditions contained in Section 7.3(h) or Section 7.3(i):occurrence of the Closing:
(a) Each of the representations and warranties of Purchaser contained set forth in ARTICLE V of this Agreement that are qualified as to materiality shall be true and correct and those that are not so qualified shall be true and correct in all material respects, in each case, as of the date hereof and (disregarding for except to the purpose extent such representations and warranties speak as of such determination any qualification as to materiality or Purchaser Material Adverse Effectan earlier date) as of the Closing Date as if though made on such date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect.Closing;
(b) Purchaser shall have performed or complied in all material respects with all the covenants and agreements and obligations which Purchaser was required by this Agreement to be performed perform or complied with by it satisfy at or prior to the Closing or at the Closing.performance of any such covenant or agreement not so performed shall have been waived in writing by all Sellers;
(c) Purchaser except for approvals not customarily and appropriately obtained from the MMS prior to a Closing, Sellers shall have deliveredreceived evidence, in form reasonably satisfactory to each Seller and its counsel, that all permits, consents, approvals, licenses, qualifications and orders required by governmental authorities, or caused the terms of the Interests, for ownership of the Interests by Purchaser to be delivered, obtained prior to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by PurchaserClosing have been obtained or waived;
(iid) Parent Warrant B no action or proceeding shall be pending or threatened before a court, arbitrator or governmental authority seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or to obtain substantial damages from Seller related to this Agreement; and
(e) Purchaser shall be in compliance with all of its obligations under that certain Agreement and Plan of Merger between Purchaser and HHOC (the "Merger Agreement"), or such obligations shall have been waived in writing by HHOC, and the closing under the Merger Agreement (including execution by the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as parties thereto of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement contemplated in the Merger Agreement, duly executed by Purchaser;under which Sellers are third party beneficiaries) shall have occurred simultaneously with the Closing.
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