Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closing: (a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule; (b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct; (c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached; (e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement. (f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction; (g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date; (h) the Company shall have delivered the original corporate minute books of the Company; (i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions; (j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx; (k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and (l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 5 contracts
Samples: Stock Purchase Agreement (Aerovox Inc), Stock Purchase Agreement (Aerovox Inc), Stock Purchase Agreement (Aerovox Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- proceed with the Closing and consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company representations and warranties of Seller hereunder shall have obtained be true and correct in all material respects at and as of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleClosing Date;
(b) the representations Seller shall have performed and warranties complied with all of its covenants hereunder in all material respects through the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correctClosing;
(c) no action, suit suit, or proceeding shall be pending before any court or threatened by quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any Governmental Entity arbitrator wherein an unfavorable injunction, judgment, order, decree, stipulation ruling, or injunction 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 rescinded following consummation consummation, or (iii) affect adversely in any material respect the right of rights in and to the Buyer to own, operate or control any of the assets or operations of the Company, Assets (and no such injunction, judgment, order, decree, stipulation ruling, or injunction charge shall be in effect);
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified above in clauses (a), (b), (c), and (d), of this Clause 5.1 has been Section 6.2(a) -(c) is satisfied in all respects; and;
(e) the Buyer shall have received from counsel to the Seller an opinion in form and substance acceptable to Buyer, addressed to the Buyer, and dated as of the Closing Date containing such assumptions and qualifications as may be reasonably acceptable to Buyer's legal counsel;
(f) Xxxxxxxx, individually, shall have entered into a separate Employment Agreement with Buyer in the form attached hereto as EXHIBIT B (the "Employment Agreement");
(g) The Seller shall have delivered to Buyer instruments of assignment and transfer or bills of sale signed by Seller as the Buyer shall reasonably request, including the Xxxx of Sale in substantially the form attached hereto as EXHIBIT C (the "Xxxx of Sale");
(h) Seller shall have delivered to Buyer affidavits or other reliable evidence reasonably satisfactory to Buyer and its counsel of Seller's authority to sell the Assets;
(i) Buyer shall have completed its due diligence review of Seller and the Business and been satisfied with the results;
(j) The Board of Directors and shareholders of Seller shall have approved the terms of this transaction and Seller shall have delivered a certificate therefore to Buyer;
(k) The Board of Directors of Buyer shall have approved the terms of this transaction;
(l) the Stockholder Seller shall have delivered entered into with Parent a Registration Rights Agreement in a form similar to those previously entered into by similarly situated shareholders of Parent and reasonably acceptable to Buyer and its counsel (the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares."Registration Rights Agreement");
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions purchase of the Purchased Assets contemplated by this Agreement is shall be subject to the satisfaction, or waiver by the Buyer, of the following conditions on fulfillment at or prior to the ClosingClosing Date of the following additional conditions:
(a) the Company Sellers shall have obtained performed and complied in all of material respects with the waivers, permits, consents, approvals covenants contained in this Agreement which are required to be performed and complied with by such Sellers on or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect prior to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) Closing Date and the representations and warranties of the Stockholder such Sellers which are set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct in all material respects as of the transactions contemplated by this Agreement, (ii) cause any date of the transactions contemplated by this Original Agreement to be rescinded following consummation or (iii) affect adversely the right and as of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
Closing Date (d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) except to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates that any such representation or warranty speaks as of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business a particular date) as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated though made at and as of the Closing Date;
(hb) the Company Buyer shall have delivered the original corporate minute books received a certificate from an authorized officer of each of the CompanySellers, dated as of the Closing Date, to the effect that, to the best of such officer's knowledge, the conditions set forth in Section 8.2(a) have been satisfied;
(c) the Purchased Assets shall have been released from all Encumbrances and there shall be no Encumbrances on the Purchased Assets (other than the Permitted Encumbrances);
(d) the Sellers' lenders under that certain Credit Agreement, dated as of July 2, 1998 (the "Pre-Petition Secured Lenders"), shall have agreed in writing that any and all of their post-petition liens on the Purchased Assets shall attach only to the proceeds of the transactions contemplated hereby and not to the Purchased Assets;
(e) each of the Key Executives shall have agreed to become employed by the Buyer as of the Closing Date on terms not materially different from the terms set forth on Exhibit I for such Key Executive, and each Key Executive shall not have died or suffered a Disability;
(f) the Buyer shall have received the other items to be delivered pursuant to Section 4.3;
(g) all FCC Consents shall have become Final Orders; and
(i) the signatories to each of FCC Analogous Consents for the bank accounts of the Company following states or jurisdictions shall have been changed as per the Buyer's instructions;
become Final Orders: Arizona, California, Connecticut, District of Columbia, Illinois, Maryland, Massachusetts, Ohio, Pennsylvania, Texas, New York, New Jersey and Virginia or (jii) the Buyer or its designee and TSI shall have entered into an Employee Agreement with Xxa management agreement pursuant to Section 7.17(a) in the event that any FCC Analogous Consent for the foregoing states in clause (i) has not become a Final Order. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) Any condition specified in this Section 8.2 may be waived by the Stockholder Buyer; provided that no such waiver shall have delivered to be effective against the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality unless it is set forth in any representation or warranty) to a writing executed by the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Teligent Inc), Asset Purchase Agreement (Teligent Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND Article II being true and Clause THIRD hereof correct as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement, (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correctcorrect as of such date, subject to clause (iii) below) and (iii) where the failure of the representations and warranties to be true and correct neither is, nor reasonably would be expected to be, in the aggregate, materially adverse to the Business (it being agreed that any materiality qualification in a representation and warranty shall be disregarded in determining whether any such failure is or would reasonably be expected to be materially adverse to the Business for purposes of this clause (iii));
(b) the Sellers having materially performed or complied with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding shall be being pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be being in effect;
(d) each of the Stockholder shall have Sellers having delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attacheda Seller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: Sellers having (i) the charter documents (estatutos socialesobtained all Third Party Consents and effected all Governmental Filings listed in Schedule 5.1(e) of the Company and (ii) obtained any other Third Party Consent and effected any other Governmental Filing which, if not obtained or effected, and after giving effect to Section 1.5, is or would reasonably be expected to have a material adverse effect on the resolutions of the Board of Directors of the Company required to authorize this Agreement.Business;
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Such portion of the Company or StockholderBusiness Employees described on Exhibit E having accepted full-time, as at-will employment with the case may be, in each such jurisdictionBuyer;
(g) the Buyer shall have received from Mexican counsel Sellers having delivered to the Stockholder an opinion as to Buyer the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;Deferred Revenue Certificate; and
(h) the Company shall have delivered the original corporate minute books Buyer having received such other customary certificates (such as certificates of good standing of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed Sellers and certificates as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to connection with the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (I Many Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- proceed with the Closing and consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company representations and warranties of each Seller hereunder shall have obtained be true and correct in all material respects at and as of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleClosing Date;
(b) each Seller shall have performed and complied with all of its covenants hereunder in all material respects through the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correctClosing;
(c) no action, suit suit, or proceeding shall be pending before any court or threatened by quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any Governmental Entity arbitrator wherein an unfavorable injunction, judgment, order, decree, stipulation ruling, or injunction 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 rescinded following consummation consummation, or (iii) affect adversely in any material respect the right of rights in and to the Buyer to own, operate or control any of the assets or operations of the Company, Assets (and no such injunction, judgment, order, decree, stipulation ruling, or injunction charge shall be in effect);
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Sellers shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified above in clauses (a), (b), Section 6.2(a) - (c), and (d), of this Clause 5.1 has been ) is satisfied in all respects; and;
(le) the Stockholder Buyer shall have received from counsel to the Sellers an opinion in form and substance acceptable to Buyer, addressed to the Buyer, and dated as of the Closing Date containing such assumptions and qualifications as may be reasonably acceptable to Buyer's legal counsel;
(f) Xxxxxx, individually, shall have entered into a separate Employment Agreement with Buyer in a form reasonably acceptable to Buyer (the "Xxxxxx Employment Agreement");
(g) Xxxxxx, individually, shall have entered into a separate Employment Agreement with Buyer in a form acceptable to Buyer (the "Xxxxxx Employment Agreement");
(h) The Sellers shall have delivered to Buyer instruments of assignment and transfer or bills of sale signed by Sellers as the Buyer shall reasonably request, including the Xxxx of Sale in a certificate that establishes form reasonably acceptable to Buyer and its counsel (the share distribution "Xxxx of Sale");
(i) The Sellers shall have delivered to Buyer affidavits or other reliable evidence reasonably satisfactory to Buyer and its counsel of Seller's authority to sell the CompanyAssets;
(j) The Sellers shall have each entered into a certain First Amended and Restated Shareholders' Agreement dated as of May 14, 1997 (the "Shareholders' Agreement") on terms and indicating that no other person other than the Stockholder owns or has any right upon the Shares.conditions reasonably satisfactory to Buyer and its counsel;
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Assets (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is are subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of each of the following conditions on or prior to as of the Closing:
(a) the Company The Seller shall have obtained all delivered to the Buyer a certificate of its Secretary dated as of the waivers, permits, consents, approvals or other authorizationsClosing Date and certifying that attached thereto are (i) true and complete copies of the correct certificate of incorporation and bylaws of Seller, and effected all amendments thereto, (ii) true copies of all corporate actions taken by it, including resolutions adopted by its Board of Directors authorizing the consummation of the registrationstransactions contemplated hereby and the execution, filings delivery and noticesperformance of this Agreement, as may be required and that all such resolutions are in full force and effect and are all the resolutions adopted by or with respect to the Company it in connection with the transactions contemplated by this Agreement, includingand (iii) certificates of good standing from the Secretary of State of Delaware, without limitationdated as of a date not more than five (5) days prior to Closing, those referred to certifying that the Seller is in CLAUSE 2.30 of the Disclosure Schedule;good standing in Delaware.
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder The Seller shall have executed (and/or caused the appropriate Affiliate thereof to execute) and delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as toBuyer: (i) the charter documents (estatutos sociales) Bxxx of the Company and Sale; (ii) the resolutions of Assignment and Assumption Agreement; (iii) the Board of Directors of License Agreement; (iv) the Company required to authorize this AgreementTrademark Assignment; and (v) any other agreements, documents or certificates contemplated hereby.
(fc) The Seller shall have obtained the consent of each Person set forth in Schedule 8.1(c) and any Governmental Authority whose consent is required under the Assigned Contracts or otherwise to consummate the transactions contemplated hereby and shall have provided evidence to the extent reasonably available Buyer of each such Consent in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as form and substance satisfactory to the due qualification Buyer (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;“Required Consents”).
(gd) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder The Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification non-foreign affidavit dated as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified Closing Date, sworn under penalty of perjury and in clauses (a), (b), (c), form and (d), of this Clause 5.1 has been satisfied substance required under Treasury Regulations issued pursuant to Code §1445 stating that the Seller is not a “foreign person” as defined in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesCode §1445.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Columbia Laboratories Inc), Asset Purchase Agreement (Columbia Laboratories Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer’s waiver, of the following conditions on at or prior to the Closing, of each of the following conditions:
(a) Other than the Company shall have obtained all Fundamental Representations of the waiversSellers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth Sellers contained in Clause SECOND this Agreement and Clause THIRD hereof the Transaction Documents shall be true and correct;
correct in all respects (cin the case of any representation or warranty qualified by materiality or Material Adverse Effect) no actionor in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, suit or proceeding the accuracy of which shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation determined as of any that specified date in all respects). The Fundamental Representations of the transactions contemplated by this Agreement, (ii) cause any Sellers shall be true and correct in all respects on and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right date hereof and on and as of the Buyer to ownClosing 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, operate or control any the accuracy of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction which shall be determined as of that specified date in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the all respects). The Buyer shall have received from Mexican counsel to a certificate signed by the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoSellers, dated as of the Closing Date;, certifying with respect to the foregoing matters in this Section 10.2(a).
(hb) the Company The Sellers shall have delivered duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and the original corporate minute books Transaction Documents to be performed or complied with by the Sellers prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, the Sellers shall have performed such agreements, covenants and conditions, as so qualified, in all respects. The Buyer shall have received a certificate signed by the Sellers, dated as of the Company;Closing Date, certifying with respect to the foregoing matters in this Section 10.2(b).
(ic) the signatories to each of the bank accounts of the Company No Proceeding shall have been changed as per commenced against any of the Buyer's instructions;Sellers or the Companies, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Entity, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(jd) the Buyer or its designee All approvals, consents and waivers that are listed on Schedule 2.4(a)(x) shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder been received, and executed counterparts thereof shall have been delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge at or materiality set forth in any representation or warranty) prior to the effect that each of Closing.
(e) Buyer shall have received the conditions specified in clauses Audited Financial Statements with an unqualified opinion from the Auditor.
(a), (b), (c), and (d), f) From the date of this Clause 5.1 has been satisfied Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in all respects; andthe aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(lg) the Stockholder The Buyer shall have received from the Sellers all documents, certificates, instruments and any and all other deliverables required to be delivered by the Sellers in accordance with and pursuant to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSection 2.4(a).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Urban-Gro, Inc.), Stock Purchase Agreement (Urban-Gro, Inc.)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the The representations and warranties of the Stockholder set forth Company contained in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no actioncorrect both when made and as of the Closing Date, suit or proceeding in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be pending true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or threatened by qualification as to “materiality” (including the word “material”) or before any Governmental Entity wherein an unfavorable judgment“Material Adverse Effect” set forth therein) would not, orderindividually or in the aggregate, decree, stipulation or injunction would (i) prevent consummation of any of reasonably be expected to have a Material Adverse Effect on the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated Company. The Company shall have performed all obligations and agreements and complied with all covenants and conditions required by this Agreement to be rescinded following consummation performed or (iii) affect adversely complied with by it prior to or at the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Closing. The Buyer shall have received from Mexican counsel the Company a certificate to the Stockholder an opinion as to effect set forth in the matters described preceding sentences, signed by a duly authorized officer thereof.
(b) The representations and warranties of the Seller contained in Exhibit 5.1. g) hereto, dated this Agreement shall be true and correct both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Seller. The Seller shall have performed all obligations and agreements and complied with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing. The Buyer shall have received from the Seller a certificate to the effect set forth in the preceding sentences, signed by a duly authorized officer thereof.
(c) The Buyer shall have received an executed counterpart of each of the Option Assignment Documents and the Repayment Certificate.
(d) Confirmation by an independent third-party engineering firm, reasonably acceptable to the Buyer, that, as of the Closing Date:
(i) item (a) and Part I, Exhibit A of item (b) of the definition of Substantial Completion (as defined in Section 6.5.2 of that certain Standard Form of Agreement between Midwest Renewables, L.C., and Xxxxx, Inc., dated January 6, 2005, regarding the Fairbank facility (the “Fairbank Contract”)) have been achieved and no material requirements therefor have been waived by the Company;
(hii) the Company shall has completed all of the Owner’s material obligations set forth on Exhibits C and H of the Fairbank Contract;
(iii) all material permits listed on Exhibit H of the Fairbank Contract required to have delivered been obtained by the original corporate minute books Closing Date have been obtained by or on behalf of the Company;
(iv) item (a) and Part I, Exhibit A of item (b) of the definition of Substantial Completion (as defined in Section 6.5.2 of that certain Standard Form of Agreement between Midwest Renewables, L.C., and Xxxxx, Inc., dated January 6, 2005, regarding the expansion of the Iowa Falls facility (the “Iowa Falls Contract”)) have been achieved and no material requirements for Substantial Completion have been waived by the Company;
(v) the Company has completed all of the Owner’s material obligations set forth on Exhibits C and H of the Iowa Falls Contract; and
(vi) all material permits listed on Exhibit H of the Iowa Falls Contract required to have been obtained by the Closing Date have been obtained by or on behalf of the Company.
(e) The Company shall have provided internal documentation, reasonably satisfactory to the Buyer, confirming that during the 14-day period ending on the day immediately preceding the Closing Date, the average annualized ethanol production (calculated without taking into account the production during the two lowest production days during such 14-day period, neither of which two lowest days may be within four days prior to the Closing Date) is at or above 95% of: (A) for the Xxxxxxxx facility, the specified guaranteed production capacity of 100 million gallons per year of fuel-grade ethanol; and (B) for the Iowa Falls facility, the specified guaranteed production capacity of 80 million gallons per year of fuel-grade ethanol.
(f) Execution by Seller of the Intermediate LLC Operating Agreement and members’ agreement of Intermediate LLC on the terms set forth on Exhibit C hereto. Each member of management of the Company will own the same pro rata share of the Seller that such management member owned as of the date hereof.
(g) The Buyer shall have received a release from the Seller and each Member releasing Intermediate LLC and the Company from any and all liabilities other than any rights to indemnification in their capacity as an officer or director or any claims for salary or benefits.
(h) The Buyer shall have received satisfactory evidence of the termination of all Affiliate arrangements between the Company and the Seller or its Affiliates pursuant to Section 6.15.
(i) The Buyer shall have received a statement issued by the signatories Seller in a form reasonably satisfactory to the Buyer certifying that the Seller is not a foreign person (within the meaning of Treasury Regulation Section 1.1445-2(b)(2)).
(j) Buyer shall have received from Seller an executed Intermediate LLC Certificate.
(k) Seller shall have caused the Company’s Operating Agreement to be amended to remove the necessity of (and all provisions relating to) the “special member” thereof.
(l) With respect to each of the bank accounts of Owned Real Property, the Company shall have been changed as per received a binding commitment from Fidelity National Title Insurance Company to issue a policy of title insurance on such Owned Real Property, which shall show marketable fee title thereto to be vested in the Company subject to no Encumbrances other than Permitted Encumbrances, shall contain exceptions only for Permitted Encumbrances, shall show no rights of occupancy or use by third parties (other than by virtue of Permitted Exceptions) and shall show no material encroachments, and which shall otherwise be in form and substance reasonably acceptable to the Buyer's instructions;.
(jm) the The Buyer or its designee shall have entered into received, from Xxxxx Xxxxxxx (the surveyor who last completed surveys of the Owned Real Property) or another reputable surveyor designated by Seller and reasonably and promptly approved by Buyer, who shall be a duly licensed surveyor in the state in which the Owned Real Property is located and who shall be engaged pursuant to a written agreement to deliver a survey consistent with the requirements of this Agreement, an Employee Agreement ALTA/ACSM Class A Land Title Survey with Xxrespect to each Owned Real Property, excluding, however, requirement (g) of the 2005 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, as adopted by the American Land Title Association and National Society of Professional Surveyors, but indicating thereon all encroaching structural appurtenances and projections by or on adjoining property or on abutting streets, on any easement or over set back lines, which shall be indicated with the extent of such encroachment or projection; and which survey does not otherwise reveal any fact or condition which (i) has not been previously disclosed to Buyer and (ii) could reasonably be expected to materially and adversely interfere with the operation of the Business as currently conducted. Xxxxxxx Xxxxxxx Xxxxxxxx;The cost of such surveys shall be borne by the Company.
(kn) the Stockholder Seller shall have delivered caused each Non-Competition Party and each Non-Solicitation Party to deliver to Buyer an irrevocable written acknowledgement of, and agreement with, the applicable terms of Section 6.12. Upon such delivery, which may occur at any time prior to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality Closing, the condition set forth in any representation or warrantythis Section 7.3(n) to the effect that each of the conditions specified in clauses (a), (b), (c), shall be deemed satisfied and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesterminate.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer under this Agreement are subject to -------------------------------------- consummate the satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in whole or in part by the Buyer in its sole discretion:
(a) Each of the representations and warranties of the Company contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto shall be true and correct in all material respects as of the Closing Date (unless the context of the representation or warranty indicates that it can be made only as of some earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date);
(b) Each of the representations and warranties of the Sellers contained in this Agreement and in any certificate or other writing delivered by the Sellers pursuant hereto shall be true and correct in all material respects as of the Closing Date (unless the context of the representation or warranty indicates that it can be made only as of some earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date);
(c) Each of the Sellers shall have performed and complied with in all material respects all covenants and agreements required by this Agreement to be performed and complied by such Seller prior to or on the Closing Date;
(d) The Sellers shall, (i) with respect to Shares held in certificated form, deliver the physical certificates evidencing the Shares and executed Transfer Request Forms (with medallion signature guarantee stamps) for such Shares to Buyer’s electronic account as Buyer shall provide a reasonable time prior to Closing directing that such Shares be transferred to the name of the Buyer on the stock transfer records of the Company, and (ii) with respect to Shares held in book-entry form, deliver to Buyer a copy of an executed Transfer Request Letter directing such Shares to be transferred to Buyer to such account information as Buyer shall provide a reasonable time prior to Closing (the “Transfer Request Letter”) and the Sellers shall further deliver such Transfer Request Letter to the institution holding such Shares and authorize and direct such institution to actually transfer the Shares referred to therein to Buyer;
(e) Since September 29, 2017, no Material Adverse Effect shall have occurred with respect to the Company;
(f) Each of the Executive Officers of the Company shall have executed a supplement to such Executive Officer’s employment agreement, in form and substance satisfactory to the Buyer, and the Company shall have executed such supplements to the employment agreements; in addition, the Company shall have granted to each such Executive Officer the stock options contemplated by such Executive Officer’s supplement to his employment agreement;
(g) Each of Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx shall deliver resignation letters, effective as of the Closing, resigning (i) as a director of the Company, (ii) as an officer of the Company, (iii) as an officer or director of each Subsidiary, if applicable and (iv) as an employee or consultant of the Company and its Subsidiaries, if applicable;
(h) The Company shall have satisfied its obligations as set forth in Section 8.1 hereof that are required to be satisfied as of the Closing Date;
(i) No Action shall be pending, or to the Knowledge of the Company or the Sellers, threatened against any of the parties hereto or any of their respective Affiliates which, if adversely determined, would (i) prevent, materially alter or materially delay consummation of the transactions contemplated by this Agreement is subject to or any of the satisfactionother Transaction Documents, or waiver (ii) result in a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole;
(j) The Company shall deliver a certificate of the Secretary of the Company as to (i) the Restated Certificate of Incorporation of the Company, as amended, and the By-Laws of the Company, as amended, (ii) the incumbency and signatures of the Executive Officers, and (iii) resolutions adopted by the Buyer, Board of Directors of the following conditions on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with approving the transactions contemplated by this Agreement, including, without limitation, those referred the amendments to in CLAUSE 2.30 the employment agreements of the Disclosure ScheduleExecutive Officers and the grant of stock options to the Executive Officers in accordance with such amendments;
(bk) Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx shall have reimbursed the representations and warranties of Company for all Reimbursed Expenses in the Stockholder amounts set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;the Reimbursement Agreement.
(cl) no actionEach of the Sellers which is an entity shall evidence of the authority of such Entity’s authorized signatory to execute, suit or proceeding deliver and perform this Agreement and the other Transaction Documents to which it is a party; and
(m) The Sellers and the Company shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of deliver such other documents and instruments as the Buyer shall reasonably request in order to consummate the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Learning Tree International, Inc.), Securities Purchase Agreement (Collins David C)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement is it in connection with the Closing are subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained representations and warranties set forth in Section 3 will be true and correct in all respects at and as of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleClosing Date;
(b) the representations Seller will have performed and warranties of complied with all its covenants contained in this Agreement in all respects through the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correctClosing;
(c) no action, suit or proceeding shall will be pending or threatened by or before any Governmental Entity wherein Authority in which an unfavorable injunction, judgment, order, decree, stipulation ruling or injunction would 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 rescinded following consummation consummation; or (iii) affect adversely the right of the Buyer to own, own the Acquired Assets or to operate or control any the former businesses of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectSeller;
(d) the Stockholder shall Seller will have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), this Section 6.1(a) to (c), and (d), of this Clause 5.1 has been ) is satisfied in all respects; and;
(le) members of the Seller holding at least 70% of the Seller's membership units will have approved this Agreement and the Transaction Documents and the transactions contemplated by this Agreement and the Transaction Documents at the Special Meeting or by a written consent circulated to the members in accordance with Section 5.4 of the Operating Agreement;
(f) the Stockholder shall Seller will have delivered to the Buyer a certificate that establishes the share distribution list of Liabilities of the CompanySeller current as of the Closing Date, certified by a manager of each of the Seller;
(g) the Seller will have procured all of the necessary third party consents, authorizations and indicating approvals, all of which must be final and non-appealable for the contracts and agreements described on Section 3.14 of the Seller's Disclosure Schedule;
(h) there will not have occurred any material adverse change in the condition (financial or otherwise), properties, business operations, results of operations or prospects of the Seller or the Acquired Assets, individually or in the aggregate;
(i) the Buyer will have completed its business, legal, accounting and Intellectual Property due diligence on the businesses of the Seller to its sole satisfaction;
(j) the Seller will have delivered to the Buyer non-competition agreements between the Buyer and each of the Persons that no are Affiliates or employees of the Seller designated by the Buyer in its sole and absolute discretion, in form and substance acceptable to the Buyer (collectively, the "NON-COMPETITION AGREEMENTS");
(k) the Seller will have delivered to the Buyer a xxxx of sale, executed by the Seller, in a form acceptable to the Buyer;
(l) the Seller will have delivered an assignment and assumption agreement whereby the Buyer will accept and assume the agreements described on Section 3.14 of the Seller's Disclosure Schedule, in a form and substance agreeable to the Buyer;
(m) the Seller will have delivered intellectual property assignment agreement(s) whereby each of the Persons that are Affiliates or employees of the Seller designated by the Buyer in its sole and absolute discretion, will have delivered his, her or its rights to the Intellectual Property of the Seller to the Seller prior to the Closing Date;
(n) the Seller will have delivered a certificate of incumbency, dated as of the Closing Date, as to the managers and other person personnel of the Seller executing this Agreement and any certificate, instrument or document to be delivered by the Seller at the Closing; and
(o) the Seller will have delivered a certified copy of limited liability company resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(p) the Seller will have delivered to the Buyer such other than documents and instruments as are reasonably necessary or appropriate to effect the Stockholder owns consummation of the contemplated transactions or has that may be required under any right upon Laws; and
(q) all actions to be taken by the SharesSeller in connection with consummation of the contemplated transactions and all certificates, instruments and other documents required to effect these transactions will be reasonably satisfactory in form and substance to the Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Innuity, Inc. /Ut/), Asset Purchase Agreement (Innuity, Inc. /Ut/)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions sale of the Fossil Assets contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) There shall not have occurred and be continuing a Material Adverse Effect;
(b) The Sellers shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which relate to the Fossil Assets and are required to be performed and complied with by the Sellers on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizationsClosing Date, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers which relate to the Sellers or the Fossil Assets and are set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct as of the transactions contemplated by date of this Agreement, (ii) cause any Agreement and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, Closing Date as though made at and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) There shall be no Encumbrances on the Company Fossil Assets by virtue of the Indentures or the NERC Note Agreements;
(d) The Buyer shall have delivered the original corporate minute books received certificates from authorized officers of the CompanySellers, dated the Closing Date, to the effect that, to the best of such officers' knowledge, the conditions set forth in Sections 8.2(a), (b) and (c) have been satisfied;
(e) XXXX shall have transferred the NERC Stock to NEP;
(f) New England Power Service Company, a Massachusetts corporation ("NEPSCO"), shall have assigned to the Buyer all of its rights and obligations in (i) the signatories Main Table Agreements as they relate to each of the bank accounts of IBEW/UWUA Employees and (ii) the Company shall have been changed BUW CBAs as per they relate to the Buyer's instructionsBUW Employees, to be employed at or in conjunction with the Fossil Assets after the Closing Date;
(jg) The Buyer shall have received an opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, or other counsel reasonably acceptable to Buyer, dated the Closing Date and satisfactory in form and substance to the Buyer or and its designee shall counsel, substantially to the effect that:
(1) The Sellers and NERC are each corporations duly organized, existing and in good standing under the laws of their respective states of incorporation and the Sellers have entered into an Employee the corporate power and authority to execute and deliver this Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxand those Ancillary Agreements which relate to the Fossil Assets and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and such Ancillary Agreements and the consummation of the sale of the Fossil Assets contemplated hereby have been duly authorized by all requisite corporate action taken on the part of the Sellers;
(k2) the Stockholder shall have delivered this Agreement and those Ancillary Agreements which relate to the Fossil Assets have been duly executed and delivered by the Sellers and (assuming that the Sellers Required Regulatory Approvals and the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyRequired Regulatory Approvals are obtained) to the effect that each are valid and binding obligations of the conditions specified Sellers, enforceable against the Sellers in clauses accordance with their terms, except (a)A) that such enforcement may be subject to bankruptcy, (b)insolvency, (c)reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (d)B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(3) the execution and delivery and performance of this Agreement and the Ancillary Agreements by the Sellers do not (i) conflict with the Certificates of Incorporation or Bylaws, as currently in effect, of this Clause 5.1 has been satisfied in all respects; and
the Sellers or (lii) to our knowledge constitute a violation of or default under the Stockholder shall have delivered to the Buyer a certificate Applicable Contracts (except that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.we express no
Appears in 2 contracts
Samples: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on (any or prior to all of which may be waived by the Closing:Buyer in whole or in part):
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals approvals, or other authorizations, and effected all of the registrations, filings filings, and notices, as may be referred to in Section 4.2 that are required by on the part of the Seller, except for any the failure of which to obtain or with respect effect would not, individually or in the aggregate, have a material adverse effect on the right of the Buyer to own, operate, or control the Company in connection with Acquired Assets following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement; provided, includinghowever, without limitation, those referred that the Parties agree that the failure to in CLAUSE 2.30 obtain any and all consents required by the Siemens Contract and the Real Property Lease would have a material adverse effect on the right of the Disclosure ScheduleBuyer to own, operate, or control the Acquired Assets following the Closing;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect as of the date of this Agreement and shall be true and correct as of the Closing as though made as of the Closing, except to the extent that the inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a material adverse effect on the right of the Buyer to own, operate, or control the Acquired Assets or the Business following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in particular representations and warranties shall be disregarded in determining whether any such inaccuracies would have such a material adverse effect for purposes of this Section 5.1(b));
(c) the Seller shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation stipulation, or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer to own, operate operate, or control any of the assets Acquired Assets, or operations of to conduct the CompanyBusiness, following the Closing, and no such judgment, order, decree, stipulation stipulation, or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which to the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationBuyer an update, as of the date immediately prior to the due qualification Closing Date, of each list contained in the Disclosure Schedule that lists or describes Acquired Assets (including tax) the lists set forth in Sections 1.1(a), 2.7(c), 2.8, 2.9, 2.11, and 2.18 of the Company or StockholderDisclosure Schedule), such update to be effective as the case may be, in each such jurisdictioncontemplated by Section 4.5(a) hereof;
(g) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Encumbrances on the Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Encumbrances, other than Encumbrances that are listed in Section 2.7 of the Disclosure Schedule under the heading "Permitted Encumbrances";
(h) the Seller shall have executed and delivered to the Buyer each of the Ancillary Agreements;
(i) the Seller shall have executed and delivered to the Buyer a FIRPTA Certificate;
(j) the Buyer shall have received from Mexican counsel to such other certificates and instruments (including a certificate of good standing of the Stockholder an opinion Seller in its jurisdiction of organization, and certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. gconnection with the Closing;
(k) heretothe Acquired Assets are in good operating condition and repair, other than repairs and maintenance necessary to operate the Acquired Assets and conduct the Business that in the aggregate for all such Acquired Assets would not exceed $500,000;
(l) the International Union of United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") shall have expressed a willingness to extend the current Memorandum of Understanding contained in the UAW collective bargaining agreement with respect to unionized employees of the Business;
(m) the Seller shall have delivered to Buyer a written opinion, dated as of the Closing Date;, of Xxxxx XxXxxxx LLP, in form and substance reasonably satisfactory to Buyer and its counsel; and
(hn) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to Buyer the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares2002 Financial Statements.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Fabri Steel Products Inc), Asset Purchase Agreement (Fabri Steel Products Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which to the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationBuyer an update, as to the due qualification (including tax) of the Company or StockholderClosing Date, of Section 2.2, setting forth the capitalization of the Seller as the case may be, in each of such jurisdictiondate;
(g) the Buyer Seller shall have received from Mexican counsel delivered to the Stockholder an opinion as Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets, and copies of filed UCC termination statements with respect to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Dateall UCC financing statements evidencing such Security Interests;
(h) the Company Seller shall have delivered received the original corporate minute books Final Report and no Key Product Event shall have occurred prior to the delivery of the CompanyFinal Report;
(i) the signatories Seller shall have delivered to the Buyer investment questionnaires in the form attached hereto as Exhibit F from each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;Seller’s stockholders; and
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
received such other certificates and instruments (k) including certificates of good standing of the Stockholder shall have delivered Seller in Delaware and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the Buyer a certificate (incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to connection with the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.), Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is are subject to the satisfaction, satisfaction or waiver (if permitted by the Buyer, of the following conditions on applicable Law) at or prior to the ClosingClosing of each of the following conditions:
(a) the Company shall have obtained representations and warranties of Holdco and the Sellers set forth in this Agreement will be true, complete and correct in all respects (provided that any representation or warranty of Holdco or any Seller contained herein that is subject to a materiality, Material Adverse Effect or similar qualification will not be so qualified for purposes of determining the existence of any breach thereof on the part of Holdco or the Seller) as of the waivers, permits, consents, approvals or other authorizations, Closing Date as though made on and effected all as of the registrations, filings and notices, as may be required by or with respect Closing Date (except to the Company extent such representations and warranties speak as of an earlier date), except for such breaches that would not, individually or in connection the aggregate with any other breaches on the transactions contemplated by this Agreementpart of Holdco or any Seller, including, without limitation, those referred reasonably be expected to in CLAUSE 2.30 of the Disclosure Schedulehave a Material Adverse Effect;
(b) the representations and warranties each of the Stockholder set forth agreements and covenants of Holdco and the Sellers to be performed and complied with by Holdco or the Sellers pursuant to this Agreement prior to or as of the Closing Date will have been duly performed and complied with in Clause SECOND and Clause THIRD hereof shall be true and correctall material respects;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall Holdco will have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed items required by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (aSections 3.2(a), (b), (c), and (d), (e), (f), (g), (h) (i) and (j) of this Clause 5.1 has been satisfied in all respectsAgreement; and
(ld) there must not have been made or Threatened by any Person any claim asserting that such Person (a) is the Stockholder shall have delivered holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, the Buyer a certificate that establishes the share distribution Company representing 2% or more of the CompanyFully Diluted Shares, and indicating or (b) is entitled to any portion of the Purchase Price representing the amount that no other person other than would be payable at Closing to a Seller holding 2% or more of the Stockholder owns or has any right upon the Fully Diluted Shares.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Standex International Corp/De/), Stock Purchase Agreement (Standex International Corp/De/)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions sale of the Hydroelectric Assets contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) There shall not have occurred and be continuing a Material Adverse Effect;
(b) The Sellers shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which relate to the Hydroelectric Assets and are required to be performed and complied with by the Sellers on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizationsClosing Date, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers which relate to the Sellers or the Hydroelectric Assets and are set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct as of the transactions contemplated by date of this Agreement, (ii) cause any Agreement and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, Closing Date as though made at and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) There shall be no Encumbrances on the Company shall have delivered the original corporate minute books Hydroelectric Assets by virtue of the CompanyIndentures;
(id) the signatories to each The Buyer shall have received certificates from authorized officers of the bank accounts of Sellers, dated the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered Closing Date, to the Buyer a certificate (in each case without regard effect that, to any qualification as to knowledge or materiality the best of such officers' knowledge, the conditions set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (aSections 8.2(a), (b), ) and (c)) have been satisfied;
(e) NEPSCO shall have assigned to the Buyer all of its rights and obligations in the Main Table Agreements as they relate to the IBEW/UWUA Employees to be employed at or in conjunction with the Hydroelectric Assets after the Closing Date;
(f) The Buyer shall have received an opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the Closing Date and satisfactory in form and substance to the Buyer and its counsel, substantially to the effect that:
(1) NEP and Narragansett are corporations duly organized, existing and in good standing under the laws of the Commonwealth of Massachusetts and the State of Rhode Island, respectively, and have the corporate power and authority to execute and deliver this Agreement and those Ancillary Agreements which relate to the Hydroelectric Assets and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and such Ancillary Agreements and the consummation of the sale of the Hydroelectric Assets contemplated hereby have been duly authorized by all requisite corporate action taken on the part of the Sellers;
(2) this Agreement and those Ancillary Agreements which relate to the Hydroelectric Assets have been duly executed and delivered by the Sellers and (assuming that the Sellers Required Regulatory Approvals and the Buyer Required Regulatory Approvals are obtained) are valid and binding obligations of the Sellers, enforceable against the Sellers in accordance with their terms, except (A) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (d)B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(3) the execution and delivery and performance of this Agreement and the Ancillary Agreements by the Sellers do not (i) conflict with the Certificates of Incorporation or Bylaws, as currently in effect, of this Clause 5.1 has been satisfied in all respects; and
the Sellers or (lii) to our knowledge constitute a violation of or default under the Stockholder shall have delivered Applicable Contracts (except that we express no opinion as to the Buyer a certificate that establishes the share distribution of the Companyany covenant, and indicating that no other person other than the Stockholder owns restriction or has any right upon the Shares.provision
Appears in 2 contracts
Samples: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated completed by this Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingadditional conditions:
(a) the Company shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the terminations, waivers, releases, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, in each case as may set forth in Schedule 5.2(a), all of which shall be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedulefull force and effect;
(b) the representations and warranties of the Stockholder Company set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date (other than any such representations and warranties expressly made as of another date, which shall be true and correct as of such other date);
(c) the Company shall have performed or complied with in all respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Companyconsummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) no Legal Proceeding that was not filed, instituted or otherwise in effect on the Stockholder date hereof shall have delivered to been filed or otherwise instituted, or threatened in writing, against the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedCompany;
(ef) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) Compliance Certificate to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionBuyer;
(g) the Buyer shall have received from Mexican counsel copies of the resignations, effective as of the Closing, of each director and officer of the Company and (other than any such resignations which the Buyer designates, by written notice to the Stockholder an opinion Company, as unnecessary);
(h) each of the Persons listed on Schedule 5.2(h) shall have executed and delivered to the matters described Company a Non-Competition Agreement, and each such Non-Competition Agreement shall be in Exhibit 5.1. gfull force and effect, subject only, as a condition subsequent, to the occurrence of the Effective Time;
(i) hereto(A) each of the Persons listed on Schedule 5.2(i)(1) and (B) at least 80% of the Persons listed on Schedule 5.2(i)(2), dated in each case shall have executed and delivered to the Buyer a retention agreement and shall be employed by the Company as of the Closing Date;
(h) , and each such retention agreement shall be in full force and effect, subject only, as a condition subsequent, to the Company shall have delivered the original corporate minute books occurrence of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructionsEffective Time;
(j) the Buyer or its designee Company and the Holder Agent shall have entered into an Employee executed and delivered the Escrow Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxto the Buyer, and Escrow Agreement shall be in full force and effect, subject only, as a condition subsequent, to the occurrence of the Effective Time;
(k) the Stockholder 280G Vote shall have delivered occurred;
(l) demands for appraisal rights pursuant to Section 262 of the DGCL shall not have been made and not effectively withdrawn or forfeited prior to the Buyer a certificate Effective Time by holders of more than two percent (in each case without regard to any qualification 2%) of the number of outstanding Common Shares as to knowledge or materiality set forth in any representation or warranty) of the Effective Time (calculated after giving effect to the effect conversion of all of the issued and outstanding Preferred Shares into Common Shares);
(m) no Company Material Adverse Effect shall have occurred, and no event or circumstance shall have occurred or arisen that could reasonably be expected to result in a Company Material Adverse Effect;
(n) each holder of a Warrant shall have executed and delivered a Warrant Termination Agreement and each such Warrant Termination Agreement shall be in full force and effect, subject only, as a condition subsequent, to the occurrence of the Effective Time;
(o) the vesting of each Option and all other unvested equity securities shall have been accelerated such that all shares underlying such Option or equity security shall be fully vested prior to the Effective Time and all actions required or advisable for the cancellation of all Options and the termination of each Stock Plan at the Effective Time shall have been taken;
(p) holders of a majority of the outstanding principal amount of the IPO Notes shall have executed and delivered an IPO Note Termination and Release Agreement and each such IPO Note Termination and Release Agreement shall be in full force and effect, subject only, as a condition subsequent, to the occurrence of the Effective Time;
(q) each holder of a Founder Warrant shall have executed and delivered a Founder Termination Agreement and each such Founder Warrant Agreement shall be in full force and effect, subject only, as a condition subsequent, to the occurrence of the Effective Time;
(r) the Buyer shall have received such other certificates, instruments and documents as it shall reasonably request in connection with the Closing (including certificates of good standing of the Company in its jurisdiction of organization and each of the conditions specified jurisdictions in clauses (awhich it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions, copies of releases or termination of liens, financing statements or other security interests with respect to Indebtedness), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(ls) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesmatters set forth in Schedule 5.2(s).
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Red Hat Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is Transactions shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the The representations and warranties of the Stockholder set forth Seller contained in Clause SECOND and Clause THIRD hereof this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the Transactions shall be true and correct;
(c) no actioncorrect both when made and as of the Closing Date, suit or proceeding in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be pending true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or threatened by qualification as to “materiality” (including the word “material”) or before any Governmental Entity wherein an unfavorable judgment“Material Adverse Effect” set forth therein) would not, orderindividually or in the aggregate, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated reasonably be expected to have a Material Adverse Effect. The Seller shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be rescinded following consummation performed or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or complied with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of Seller prior to or at the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Closing. The Buyer shall have received from Mexican counsel the Seller a certificate to the Stockholder effect set forth in the preceding sentences, signed by a duly authorized officer thereof.
(b) The Buyer shall have received an opinion as executed copy of each of the documents listed in Section 2.7(b).
(c) There shall not have occurred any event, change, occurrence or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.
(d) At Closing, the Title Company shall issue to the matters described Buyer or be irrevocably committed to issue to the Buyer a standard coverage ALTA owner’s policy of title insurance (the “Title Policy”), in Exhibit 5.1. g) hereto, dated as the form of the Closing Date;
(h) Buyer’s Pro Forma, with the Company shall have delivered the original corporate minute books of the Company;
following changes thereto (i) the signatories to each Perimeter Legal Description shall appear in Schedule C thereof, in lieu of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c)existing legal description, and (d)ii) each exception shown on Schedule B thereof which is ultimately shown by the Survey to not affect the Land shall be removed therefrom; provided, however the Buyer acknowledges that despite the inclusion of this Clause 5.1 has been satisfied extended coverage and endorsements in all respects; and
(l) the Stockholder Buyer’s Pro Forma, no endorsements or extended coverage shall have delivered be conditions to the Buyer a certificate that establishes Buyer’s obligations under this Agreement, nor shall the share distribution of failure to obtain same result in any reduction or set off against the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesPurchase Price.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Media Investment Group Inc.), Asset Purchase Agreement (A. H. Belo Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except (i) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to clause (ii) below), and (ii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Business Material Adverse Effect (it being agreed that any materiality or Business Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Business Material Adverse Effect for purposes of this clause (ii));
(b) each Seller shall have performed or complied with in all material respects the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) there shall not have occurred since the Stockholder date hereof any change, effect or circumstance that has had, or could reasonably be expected to have, a Business Material Adverse Effect, which shall include without limitation: (i) any shut-down of the operations of the Business for more than 10 consecutive days for any reason; (ii) the death or incapacity of Xxxxxx X. Xxxxx; (iii) the termination for any reason of the Roche Diagnostic License Agreement; or (iv) the termination by any of the top five distributors or customers of the Business identified in Section 2.27 of the Disclosure Schedule, or any of the top three suppliers of the Business identified in Section 2.27 of the Disclosure Schedule, of its or their relationship(s) with the Business or any material decrease by such persons or entities in the services, supplies or materials purchased, used or provided to or from or by any of the Sellers;
(e) the Parent shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedParent Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the all applicable jurisdiction, the Company waiting periods (and any extensions thereof) under applicable foreign antitrust or trade regulation laws shall have delivered certificates of appropriate governmental officials in each jurisdiction in which expired or otherwise been terminated by the Company or the Stockholder is incorporatedcompetent authorities, resident or required to qualify to do business as a foreign corporationand all necessary authorizations under such laws, as to the due qualification (including tax) of the Company or Stockholderif any, as the case may be, in each such jurisdictionshall have been obtained;
(g) the Buyer Parent shall have received from Mexican counsel obtained the Required Shareholder Approval and provided the Buyer with evidence (reasonably satisfactory to the Stockholder an opinion as to Buyer) thereof, and the matters described Sellers shall have obtained all Third Party Consents listed in Exhibit 5.1. gSchedule 5.1(g) hereto, dated as of the Closing Dateand effected all Governmental Filings listed in Schedule 5.1(g);
(h) the Company Buyer shall have delivered received opinions of counsel to the original corporate minute books of Sellers, in forms mutually agreeable to the CompanyParties;
(i) the signatories to each of the bank accounts of the Company all Key Employees shall have been changed as per accepted (and not revoked their acceptance of, whether voluntarily, constructively or by death or incapacity) the Buyer's instructions’s offers of employment made pursuant to Section 9.1;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder each Seller shall have delivered to the Buyer an assignment of inventions agreement in a certificate form reasonably acceptable to the Buyer executed by such Seller and each of the individuals listed on Schedule 5.1(j) attached hereto;
(k) all obligations of OSI and the participants in each case without regard to any qualification as to knowledge or materiality the Deferred Compensation Plan set forth in any representation Section 9.5 shall have been performed or warranty) complied with as of or prior to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respectsClosing; and
(l) the Stockholder Buyer shall have delivered received such other customary certificates (such as certificates of good standing of the Sellers in their jurisdictions of incorporation and certificates as to the Buyer a certificate that establishes incumbency of officers and the share distribution adoption of authorizing resolutions) as it shall reasonably request in connection with the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Idexx Laboratories Inc /De)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the The representations and warranties of the Stockholder set forth Seller contained in Clause SECOND and Clause THIRD hereof the Transaction Documents qualified by materiality or by Material Adverse Effect shall be true and correct;, and those not so qualified shall be true and correct in all material respects, both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties qualified by materiality or by Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all material respects, as of such specified date. The Seller shall have performed in all material respects all obligations and agreements and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing. The Buyer shall have received from the Seller a certificate to the effect set forth in the preceding sentences, signed by a duly authorized officer thereof.
(b) The Buyer shall have received (i) an executed counterpart of each of the Ancillary Agreements, signed by each Party other than the Buyer and (ii) each of the items listed in Section 2.7(iii) through (viii) hereof.
(c) no action, suit or proceeding There shall be not be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would Action (i) prevent consummation challenging or seeking to restrain or prohibit the transactions contemplated by the Transaction Documents, (ii) seeking to prohibit or limit the ownership or operation by the Buyer or any of its Subsidiaries of any material assets of the Buyer (including the Business) or any of its Subsidiaries, or to compel the Buyer or any of its Subsidiaries to dispose of or hold separate any material assets of the Buyer (including the Business) or any of its Subsidiaries, in each case as a result of the transactions contemplated by this Agreementthe Transaction Documents, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely seeking to impose limitations on the right ability of the Buyer to own, operate or control any of its Subsidiaries to acquire or hold, or exercise full rights of ownership of, the assets Transferred Assets or operations (iv) seeking to prohibit the Buyer or any of its Subsidiaries from effectively controlling any material respect the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;Business.
(d) the Stockholder The Buyer shall have delivered received from the Seller a certificate of non-foreign status pursuant to Section 1445 of the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;Code.
(e) Each of the Company consents identified on Exhibit K shall have delivered a certificatebeen obtained, executed by in form and substance reasonably acceptable to the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this AgreementBuyer.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification Each Product Authorization (including tax) of the Company or Stockholder, as the case may be, in each other than any such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters authorization described in Exhibit 5.1. gSchedule 3.7) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesobtained.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ems Technologies Inc), Asset Purchase Agreement (Andrew Corp)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of the Buyer, to the satisfaction, or waiver by the Buyer, of the following conditions:
(a) 99.9% of the Company Common Stock shall have been tendered to Buyer on or before November 30, 1997.
(b) All representations and warranties of the Stockholder contained in this Agreement qualified by materiality shall be true and correct in all respects at Closing and all other representations and warranties of the Stockholder contained in this Agreement shall be true and correct in all material respects at and as of the Closing as if such representations and warranties were made at and as of the Closing, except for changes contemplated by the terms of this Agreement except as and to the extent that the facts and conditions on upon which such representations and warranties are based are expressly required or permitted to be changed by the terms thereof, and the Stockholder and the Company shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by the Stockholder and the Company at or prior to the Closing:.
(ac) As of the Closing Date and on or before November 30, 1997, as the case may be, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of the Buyer) shall be pending or threatened before any Governmental Authority seeking to restrain the Buyer or prohibit the Closing or seeking Damages against the Buyer, the Company shall have obtained all or their respective Properties as a result of the waivers, permits, consents, approvals or other authorizations, and effected all consummation of the registrations, filings and notices, as may this Agreement.
(d) All notices required to be required by or with respect to the Company given in connection with the transactions contemplated by this AgreementAgreement shall have been duly and timely given, includingand there shall not be any preferential purchase rights or consent requirements of Stockholder, without limitationif any, those referred with respect to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation that have not expired or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;been waived.
(e) Since the Company shall have delivered a certificate, executed by the Secretary date of the Company, attaching June 1997 Balance Sheet and certifying as to: (i) the charter documents (estatutos sociales) of the Company up to and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company there shall not have delivered the original corporate minute books of the Company;been:
(i) any change in the signatories to each of the bank accounts business, operations, prospects or financial condition of the Company shall that had or would reasonably be likely to have been changed as per a material adverse effect on the Buyer's instructions;
(j) the Buyer business, operations, prospects, Properties, securities or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each financial condition of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respectsCompany ; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Interamericas Communications Corp), Stock Purchase Agreement (Interamericas Communications Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement the Buyer in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closingconditions:
(a) the Company and the Company Stockholders shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required necessary for the consummation by or with respect to the Company in connection with and the Seller Shareholders of the Acquisition and the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of Agreement and the Disclosure ScheduleOther Stock Purchase Agreements;
(b) the representations and warranties of the Stockholder Company and the Company Stockholders set forth in Clause SECOND Articles II and Clause THIRD hereof III above shall have been true and correct when made on the Agreement Date and shall be true and correctcorrect in all material respects as of the Closing Date as if made as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(c) each of the Company and the Company Stockholders shall have performed or complied with their agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause Acquisition or any of the transactions contemplated by this Agreement or any of the Other Stock Purchase Agreements, (ii) cause the Acquisition or any of the transactions contemplated by this Agreement or any of the Other Stock Purchase Agreements to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer Company or any of the Subsidiaries to own, operate or control any of the its assets or operations of the Companyoperations, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by and the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Stockholders' Representative shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), (c), and ) through (d), ) of this Clause 5.1 has been Section 6.1 is satisfied in all respects; and;
(lf) the Stockholder Buyer shall have received from Lagexxxx & Xemax, Xxedish counsel to the Company and the Selling Stockholders, and Gray Xxxy Xxxx & Xreidenrich, United States special counsel to the Company, opinions in the forms attached hereto as EXHIBITS F-1 and F-2, addressed to the Buyer and dated as of the Closing Date;
(g) the Buyer and each of the Company Stockholders named therein shall have entered into the Registration Rights Agreement and such Agreement shall be in full force and effect on the Closing Date in accordance with its terms;
(h) the Buyer, the Selling Stockholders and the Escrow Agent shall have entered into the Escrow Agreement and such Agreement shall be in full force and effect on the Closing Date in accordance with its terms;
(i) the Buyer shall have received the resignations, effective as of the Closing Date, of each director of the Company and the Subsidiaries;
(j) the Company shall have delivered to the Buyer a registration certificate that establishes issued by the share distribution Patent and Registration Office as of the CompanyClosing Date as to the continued legal existence of the Company and its Swedish Subsidiary as of the Closing Date;
(k) the Company shall have delivered to the Buyer copies of the resolutions authorizing the Acquisition and the transactions contemplated by this Agreement;
(l) the Buyer shall have received a letter from each of Lindebergs and Deloitte & Touche, L.L.P., auditors for the Company and indicating the Buyer, respectively, in a form reasonably satisfactory to the Buyer, to the effect that no the Company and, in the case of the letter from Deloitte & Touche, L.L.P., the Buyer may treat the Acquisition as a "pooling of interests" for accounting purposes;
(m) each of Hans Xxxxxxxxx, Xxhan Borendal, Bjorx Xxxx, Xxrix Xxxx xxx Petex Xxxxxx xxxll have received an employment offer letter from the Company or the Buyer in substantially the form attached hereto as EXHIBIT C;
(n) each of Rolf Xxxxx xxx Petex Xxxx xxxll have entered into a Consulting Agreement with the Company and the Buyer in substantially the form attached hereto as EXHIBIT D and each such Agreement shall be in full force and effect on the Closing Date in accordance with its terms;
(o) the Buyer shall have consummated the transactions contemplated by the Other Stock Purchase Agreements; and
(p) all actions to be taken by the Company and the Company Stockholders in connection with the Acquisition and the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other person other than documents required to effect the Stockholder owns or has any right upon transactions contemplated hereby shall be reasonably satisfactory in form and substance to the SharesBuyer.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Security Dynamics Technologies Inc /De/), Stock Purchase Agreement (Security Dynamics Technologies Inc /De/)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(ai) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the The representations and warranties of the Stockholder set forth Seller contained in Clause SECOND and Clause THIRD hereof this Agreement or any Ancillary Agreement or any certificate delivered pursuant hereto shall be true and correct;
(c) no actioncorrect in all material respects both when made and as of the Closing Date, suit or proceeding in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be pending true and correct in all material respects as of such specified date (in each case, without giving effect to any limitation or threatened by qualification as to “materiality” (including the word “material”) or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated “Material Adverse Effect” set forth therein). The Seller shall have performed all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be rescinded following consummation performed or (iii) affect adversely complied with by it prior to or at the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Closing. The Buyer shall have received from Mexican counsel the Seller a certificate to the Stockholder effect set forth in the preceding sentences, signed by a duly authorized officer thereof.
(ii) The Buyer shall have received an opinion as executed counterpart of each of the Ancillary Agreements, signed by each party other than the Buyer, and Seller shall have delivered to Buyer each of the matters described in Exhibit 5.1. gitems to be delivered under Section 2(g)(ii).
(iii) heretoEach of the Material Consents shall have been obtained and Seller shall have provided evidence of the same reasonably satisfactory to Buyer.
(iv) Seller shall have obtained the release of any Encumbrances on or affecting the Transferred Assets, dated other than Permitted Encumbrances, and Seller shall have provided evidence of the same reasonably satisfactory to Buyer.
(v) Buyer shall have received evidence reasonably satisfactory to Buyer that Employee Plans covering any Non-U.S. Business Employees have no funding deficiencies as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories Date and that all notice, information and consultation requirements relating to each of the bank accounts of the Company shall any Non-U.S. Business Employees have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered fulfilled and completed to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each reasonable satisfaction of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Xanser Corp), Asset Purchase Agreement (Flowserve Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction or waiver by the Buyer, of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Sellers shall have obtained at their own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company listed in connection with the transactions contemplated by Schedule 5.2(a) of this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of BGS and the Stockholder set forth Sellers in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect in all respects (without regard to any Business Material Adverse Effect or materiality qualification) on and as of the Closing Date with the same effect as though such representations and warranties were made as of the Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date); provided, that the condition set forth in this Section 5.2(b) shall only be deemed to not have been satisfied if the failure of any such representation(s) and warranty(ies) to be true and correct has a Business Material Adverse Effect;
(c) each Seller shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing, it being agreed that the Sellers shall be deemed to have complied in all material respects with their agreement and covenant under Section 4.3 to use commercially reasonable efforts to preserve relationships with customers of the Business unless there is a loss of such customers that has a Business Material Adverse Effect;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iiiii) affect adversely reasonably be expected to have a material adverse effect on the right of the Buyer to own, operate or control any of the assets Business, or operations of to conduct the CompanyBusiness as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Parent shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedParent Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Sellers shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification Buyer documents evidencing the release or termination of all Security Interests (including taxother than Permitted Security Interests) on the assets of each Business Subsidiary and Operating Subsidiary held by any Affiliate of the Company or Stockholder, as the case may be, in each such jurisdictionParent and copies of executed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoresignations, dated effective as of the Closing DateClosing, of each director and officer of each Business Subsidiary and Operating Subsidiary specified by the Buyer in writing at least five (5) Business Days prior to the Closing;
(h) the Company Sellers shall have delivered to the original corporate minute books of the CompanyBuyer all source code for all owned Business Intellectual Property;
(i) this Agreement and the signatories to each Merger shall have received the Requisite Stockholder Approval and the number of Dissenting Shares shall not exceed three percent (3%) of the bank accounts number of outstanding BGS Shares as of the Company shall have been changed as per the Buyer's instructionsEffective Time;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxreceived a certificate of good standing of the Sellers and, where applicable, those Business Subsidiaries and the Operating Subsidiaries listed on Schedule 5.2(j) from the Secretary of State or other appropriate official of their respective states of incorporation;
(k) there shall not have occurred any material adverse changes in the Stockholder financial or capital markets arising as a result of any acts of terrorism which shall have delivered to render the Buyer a certificate (in each case without regard unable to any qualification as obtain the financing to knowledge or materiality set forth in any representation or warranty) to be provided under the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respectsFinancing Commitment; and
(l) the Stockholder Buyer shall have delivered received a certification from the Parent that no Seller is a foreign person in accordance with the Treasury Regulations under Section 1445 of the Code. If the Parent has not provided the certification described above to the Buyer a certificate that establishes on or before the share distribution Closing Date, the Buyer shall be permitted to withhold from the Merger Consideration any required withholding Tax under Section 1445 of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesCode.
Appears in 2 contracts
Samples: Merger Agreement (Bowne & Co Inc), Merger Agreement (Lionbridge Technologies Inc /De/)
Conditions to Obligations of the Buyer. The obligation of each of the Buyer and DParent to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller and the Parent set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect when made on the date hereof and shall be true and correct as of the Closing as if made as of the Closing, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(b) each of the Parent and the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(c) there shall have been no actionmaterial adverse change in the financial condition, suit properties, assets, liabilities, earnings, business, operations or proceeding shall be pending prospects of the Seller since the date of this Agreement, as the result of any act of God, fire, flood or threatened by or before any Governmental Entity wherein an unfavorable other catastrophic event beyond the control of the Buyer and DParent;
(d) no judgment, order, decree, stipulation or injunction would shall be in effect which (i) prevent prevents consummation of any of the transactions contemplated by this Agreement, (ii) cause causes any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect affects adversely the right of the Buyer to own, operate or control any of the assets or operations of Acquired Assets following the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedClosing;
(e) the Company shall have delivered a certificate, executed by Parent and the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), (c), and ) through (d), ) of this Clause Section 5.1 has been is satisfied in all respects; and;
(lf) the Stockholder Buyer shall have received from counsel to the Seller and the Parent an opinion substantially in the form of EXHIBIT E attached hereto, addressed to the Buyer and dated as of the Closing Date;
(g) the Buyer shall have received from intellectual property counsel to the Seller an opinion substantially in the form of EXHIBIT F attached hereto, addressed to the Buyer and dated as of the Closing Date;
(h) the Buyer shall have received all required consents for the assignment to the Buyer of the real property leases set forth in Section 2.14 of the Disclosure Schedule (other than leases where the lessor or sublessor is an Affiliate of the Seller);
(i) the Seller shall have delivered to the Buyer an update, as of the date prior to the Closing Date, of each list contained in the Disclosure Schedule that lists or describes Acquired Assets (including without limitation the lists set forth in Sections 2.12, 2.14, 2.15 and 2.25 of the Disclosure Schedule);
(j) the Seller shall have delivered to the Buyer a certificate tax status letter from the State of Washington indicating that establishes all taxes due have been paid;
(k) DParent and Microsoft Corporation shall have executed and delivered a Microsoft OEM License Agreement for Desktop Operating Systems in form and substance reasonably satisfactory to the share distribution Buyer; and
(l) all actions to be taken by the Seller and the Parent in connection with the consummation of the Companytransactions contemplated hereby and all certificates, opinions, instruments and indicating that no other person other than documents required to effect the Stockholder owns or has any right upon transactions contemplated hereby shall be reasonably satisfactory in form and substance to the SharesBuyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dynatech Corp), Asset Purchase Agreement (Telxon Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on conditions:
(a) The representations and warranties of the Sellers set forth in Article II shall be true and correct in all material respects (except for representations and warranties which are by their terms qualified by materiality, which representations and warranties shall be true and correct in all respects) as of the date hereof and as of the Closing Date as if made as of the Closing Date, except for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date);
(b) Each Seller shall have performed or complied with in all material respects the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding No Action shall be pending or have been threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would which (i) prevent is reasonably likely to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of any of the transactions contemplated by this AgreementTransaction or to result in material damages in connection with the Transaction, (ii) seeks to prohibit ownership or operation by the Buyer of all or a portion of the Business or the Acquired Assets or all or a portion of the businesses or assets of Buyer or any of its Affiliates or to compel Buyer to dispose of or hold separately all or any portion of the Business or the Acquired Assets or all or a portion of the business or assets of Buyer or any of its Affiliates as a result of the Transaction, (iii) cause the Transaction to be rescinded following consummation, or (iv) impose any material Liability on the Buyer or any of its Affiliates as a result of the Transaction;
(d) There shall not exist or have been enacted, entered, enforced, promulgated or deemed applicable to the Transaction any Law or any other action taken by any court or other Governmental Entity that has resulted or could reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 5.1(c);
(e) There shall not exist any condition, circumstance or state of facts, and there shall not have been (or reasonably be expected to occur) any event, occurrence, change, development or circumstance, which has had or could reasonably be expected to have a Business Material Adverse Effect;
(f) All applicable waiting periods (and any extensions thereof) shall have expired or otherwise been terminated, except where the consummation of the transactions contemplated by this Agreement before the expiration or other termination of any such waiting period would not reasonably be expected to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be result in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionBusiness Material Adverse Effect;
(g) the Buyer The Sellers shall have received from Mexican counsel to the Stockholder an opinion as to the matters described obtained all Third Party Consents and effected all Governmental Filings listed in Exhibit 5.1. g) hereto, dated as of the Closing DateSchedule 5.1(g);
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder The Parent shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe “Parent Certificate”) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), (e) and (g) (insofar as clause (d) relates to an action, suit or proceeding involving, or a judgment, order, decree, stipulation or injunction against, any Seller) of this Clause Section 5.1 has been satisfied is satisfied;
(i) The Parent shall have executed and delivered to the Buyer each of the Ancillary Agreements, including the Escrow Agreement, the Registration Rights Agreement and the Transition Services Agreement;
(j) The Escrow Agent shall have executed and delivered to the Buyer the Escrow Agreement;
(k) The Sellers shall have delivered to the Buyer appropriate written pay-off and termination letters from the lenders and other creditors of the Business or the Sellers, in form and substance reasonably satisfactory to the Buyer, necessary to obtain good, valid and marketable title to the Acquired Assets free and clear of all respectsLiens; and
(l) the Stockholder The Buyer shall have delivered received from the Sellers such other customary certificates (such as certificates of good standing of the Sellers in their jurisdictions of incorporation and certificates as to the Buyer a certificate that establishes incumbency of officers and the share distribution adoption of authorizing resolutions) as it shall reasonably request in connection with the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement (Par Technology Corp), Asset Purchase and Sale Agreement (ORBCOMM Inc.)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement, (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to clause (iii) below), and (iii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Company Material Adverse Effect (it being agreed that any materiality or Company Material Adverse Effect qualifications in particular representations and warranties shall be disregarded in determining whether such inaccuracies would have a Company Material Adverse Effect for purposes of this Section 5.1(a));
(b) the Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to enjoin, prevent or delay consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining, preventing or delaying the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe "Seller Certificate") to the effect that each of the conditions specified in clauses (a), (b), ) through (c)) (insofar as clause (c) relates to an action, suit or proceeding involving, or a judgment, order, decree, stipulation or injunction against, the Seller, the Business or the Company) of this Section 5.1 is satisfied;
(e) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act and applicable foreign antitrust or trade regulation laws shall have expired or otherwise been terminated, except (in the case of foreign antitrust or trade regulation laws) where the consummation of the transactions contemplated by this Agreement before the expiration or other termination of any such waiting period under applicable foreign antitrust or trade regulation law would not reasonably be expected to result in a Company Material Adverse Effect;
(f) the Seller shall have (i) obtained all Third Party Consents and effected all Governmental Filings listed in Schedule 5.1(f)(i) and (dii) obtained any other Third Party Consent and effected any other Governmental Filing which, if not obtained or effected would reasonably be expected to result in a Company Material Adverse Effect (it being understood that the failure to obtain or effect any or all of the Third Party Consents and Governmental Filings listed in Schedule 5.1(f)(ii) would not reasonably be expected to result in a Company Material Adverse Effect);
(g) the Buyer shall have received evidence reasonably satisfactory to it that all security interests granted to Xxxxxx Healthcare Finance, Inc. in the assets of this Clause 5.1 has the Company and the Stock have been satisfied in all respectsreleased; and
(lh) the Stockholder Buyer shall have delivered received such other customary certificates (such as certificates of good standing of the Seller in its jurisdiction of incorporation and the Company in its jurisdiction of incorporation and jurisdictions where it is qualified to do business and certificates as to the Buyer a certificate that establishes incumbency of officers and the share distribution adoption of authorizing resolutions) as it shall reasonably request in connection with the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Spheris Leasing LLC)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement the Buyer in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth Parent and the Company contained in Clause SECOND this Agreement, which representations and Clause THIRD hereof warranties shall be deemed for purposes of this Section 5.2(a) not to include any qualification or limitation with respect to materiality (whether by reference to a "Debtor Material Adverse Effect" or otherwise), shall be true and correct as of the Effective Time, with the same effect as though such representations and warranties were made as of the Effective Time, except where the matters in respect of which such representations and warranties are not true and correct, result from actions permitted by this Agreement or would not in the aggregate have a Debtor Material Adverse Effect;
(b) the Parent and the Company shall each have performed or complied with its material agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing in all material respects;
(c) no action, suit or proceeding there shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of not have occurred between the transactions contemplated by this Agreement, (ii) cause any of Agreement Date and the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectClosing Date a Debtor Material Adverse Effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) Parent and the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), ) through (c), and (d), ) of this Clause 5.1 has been Section 5.2 is satisfied in all respects;
(e) after the Registration Statement has been declared effective, the Rights Offering shall have expired and the Buyer shall have received aggregate proceeds therefrom (and/or from the closings contemplated by the Standby Purchase Commitments) of $217.0 million; and
(lf) the Stockholder Debtors shall have delivered on or prior to the Buyer a certificate that establishes Closing Date paid to the share distribution Pre-Petition Agent for the benefit of the Company, and indicating that no other person other than Pre-Petition Lenders at least $165 million in net proceeds under the Stockholder owns Debtor Tower Agreement or has any right upon a Replacement Tower Agreement (the Shares"Company Tower Sale Proceeds").
Appears in 1 contract
Samples: Merger Agreement (Mobilemedia Corp)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject to are subject, at the satisfaction, or waiver by option of the Buyer, to the satisfaction or waiver of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all As of the waiversClosing Date, permitsno suit, consents, approvals action or other authorizations, and effected all proceeding (excluding any such matter initiated by or on behalf of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(bBuyer) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein Authority seeking to restrain the Buyer or prohibit the Closing or seeking Damages against the Buyer or the Company or its Properties as a result of the consummation of this Agreement.
(b) The Company shall have made available to the Buyer a certified copy of all necessary corporate resolutions and actions on its behalf approving the Company’s execution, delivery and performance of this Agreement.
(c) Except for matters disclosed in Company Schedule 3.9(a) or Company Schedule 3.9(b) hereto, since January 1, 2016 and up to and including the Closing, there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, had or might have a Material Adverse Effect on the Company.
(d) The Buyer shall have received a certificate issued by the New York Secretary of State (and of each state or territory in which the Company is qualified as a foreign company), dated as of a date no less than seven (7) days prior to the Closing Date as to the good standing of the Company in such states.
(e) No proceeding in which any of the Sellers or the Company shall be a debtor, defendant or party seeking an unfavorable judgmentorder for its own relief or reorganization shall be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(f) The Buyer shall have received all minute books of the Company.
(g) The Buyer shall have received constructive possession of all originals and copies of all agreements, orderinstruments, decreedocuments, stipulation deeds, books, records, files and other data and information within the possession of the Company or injunction would any Seller pertaining to the Company and the Business (collectively, the “Records”); provided, however, that for the avoidance of doubt the Sellers may retain (i) prevent consummation copies of any Tax Returns and copies of the transactions contemplated by this AgreementRecords relating thereto, (ii) cause copies of all Records that any Seller is reasonably likely to need for complying with Legal Requirements or contractual commitments, and (iii) copies of any Records that in the reasonable opinion of any Seller will be or could reasonably be expected to be required in connection with the performance of such Seller’s obligations hereunder.
(h) To the extent the Buyer provides the Sellers with a list of designees prior to the Closing, evidence satisfactory to the Buyer that such Buyer designees are the only authorized signatories with respect to the Company’s various accounts, credit lines, safe deposit boxes or vaults set forth or required to be set forth in Company Schedule 3.18 hereto.
(i) The Buyer shall have received a certification of the Sellers’ non-foreign status as set forth in Treasury Regulation Section 1.1445-2(b), signed under penalties of perjury, in form and substance reasonably satisfactory to the Buyer.
(j) Ixxxx Xxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit B.
(k) Bxxxx XxXxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit C.
(l) Sacramone shall have executed an employment agreement with the Company in the form attached hereto as Exhibit D.
(m) Wxxxxxx Xxxxxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit E.
(n) Bxxxxx Xxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit F.
(o) Rxxxxxx Xxxxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit G.
(p) The Buyer shall have obtained financing arrangements sufficient, in its sole discretion, to consummate the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;herein.
(dq) The Buyer shall have received the Stockholder Company Financial Statements.
(r) The Company shall have delivered to the Buyer the stock certificates representing the SharesLandlord Consent, in each case duly endorsed or with duly executed stock powers attached;by the Landlord, which obligation shall include the Company’s compliance with the prerequisites and conditions to Landlord’s consent to an assignment of the Lease as provided therein.
(es) the The Company shall have delivered a certificateto the Buyer the Lease Estoppel, duly executed by the Secretary Landlord, without material deviation from the Lease Certifications as adapted to the Lease as set forth on attached Exhibit I.
(t) The Company shall have delivered to the Buyer the Sublease Estoppel, duly executed by the Subtenant, without material deviation from the Lease Certifications as adapted to the Sublease as set forth on attached Exhibit I.
(u) The Sellers shall have performed and complied in all material respects with the covenants and obligations set forth in this Agreement required to be performed by and complied with by Sellers at or before the Closing Date.
(v) Except to the extent that any inaccuracies in any such representations and warranties would not have, or would not reasonably be expected to have, a Material Adverse Effect, the representations and warranties of the Sellers contained in Article 4 shall be true and correct in all respects (without giving effect to any “materiality” and “Material Adverse Effect” qualifiers therein) as of the Effective Date and as of the Closing Date as if made on and as of the Closing Date, except for those representations and warranties contained in Article 4 that relate to a specific date, which representations and warranties shall be true and correct as of such date.
(w) Between the Effective Date and the Closing Date, there shall not have occurred any action, inaction, event, circumstance, change or development which, individually or in the aggregate, has resulted in or would reasonably be expected to result in a Material Adverse Effect to the Company.
(x) By the Closing Date, attaching and certifying as to: (i) the charter documents (estatutos sociales) Sellers shall have delivered to the Buyer documentation, reasonably satisfactory to the Buyer, substantiating that distributions made by the Company to its shareholders have been made in the aggregate, since the formation of the Company and (ii) through the resolutions Closing Date, in proportion to the shareholders’ relative ownership of Common Stock and have been or will be reported to the Board of Directors of the Company required to authorize this AgreementIRS as such.
(fy) to the extent reasonably available in the applicable jurisdiction, the Company The Sellers shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) certificate duly executed by an executive officer of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoCompany, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories , in a form and substance reasonably satisfactory to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered , certifying to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each fulfillment of the conditions specified in clauses (a), (b), (c), and (d), of set forth this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSection 6.2.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement, (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date subject to clause (iii) below), and (iii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Business Material Adverse Effect (it being agreed that (x) any materiality or Business Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Business Material Adverse Effect for purposes of this clause (iii), and (y) this (iii) shall only be applicable with respect to the Buyer's condition to its obligation to consummate the transactions contemplated by this Agreement; it being agreed that the Seller shall be responsible to indemnify the Buyer for any breach by the Seller of any representation or warranty in accordance with Article VI following the Closing of this transaction);
(b) the Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding brought by any Governmental Entity seeking to prevent consummation of the transactions contemplated by this Agreement shall be pending or threatened by or before any Governmental Entity wherein an unfavorable and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company Voting Proposal shall have delivered a certificate, executed by received the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Requisite Stockholder Approval;
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials obtained all Third Party Consents and effected all Governmental Filings listed in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionSchedule 5.1(f)(i);
(g) the Buyer shall have received from Mexican counsel to such other customary certificates (such as a certificates of good standing of the Stockholder an opinion Seller in its jurisdictions of incorporation and certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. g) hereto, dated as of connection with the Closing Date;Closing; and
(h) the Company there shall not have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to occurred any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBusiness Material Adverse Effect.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer and Parent to -------------------------------------- effect the Closing and consummate the transactions contemplated by this Agreement is subject to the satisfaction, or waiver by the Buyer, of the following conditions satisfaction on or prior to the ClosingClosing Date of the following conditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof shall Article IV will be true and correctcorrect in all material respects as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date);
(cb) no actionthe Seller will have performed or complied with, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgmentin all material respects, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement its covenants and agreements hereunder that are required to be rescinded following consummation performed or (iii) affect adversely the right of the Buyer complied with on or prior to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall Seller will have delivered to the Buyer a certificate (in each case without regard to any qualification executed as to knowledge or materiality set forth in any representation or warranty) of the Closing Date by an executive officer of the Seller to the effect that each of the conditions specified in clauses (a), (b), (c), and above is satisfied;
(d)) there will not be any judgment, order, decree, stipulation, injunction or charge in effect preventing consummation of the transactions contemplated by this Agreement;
(e) the Seller will have delivered to the Buyer:
(i) a duly executed counterpart of the Bxxx of Sale and Assignment and Assumption Agreement;
(ii) a duly executed counterpart of the License Agreement;
(iii) the Payoff Letter; and
(iv) such other instruments of sale, transfer, conveyance and assignment as the Buyer and its counsel may reasonably request to vest in the Buyer all of the Seller’s right, title and interest in and to the Purchased Assets;
(f) since the date of this Clause 5.1 has been satisfied Agreement, no Material Adverse Effect shall have occurred and be continuing;
(g) the Parties will have received any necessary approval, or the termination or expiration of any waiting period will have occurred without any outstanding notice from any Governmental Entity, under all Antitrust Laws;
(h) the Seller shall have delivered consents to assignment of any Material Contract identified on Schedule 9.1(h);
(i) the Seller shall have delivered executed Retention Agreements (each in all respectsthe form attached hereto as Exhibit D) to the employees listed on Schedule 9.1(i) hereto;
(j) the Seller shall have delivered an executed copy of the form of Transition Services Agreement attached hereto as Exhibit E;
(k) the Seller shall have delivered an executed copy of the form of Intellectual Property Assignment attached hereto as Exhibit F; and
(l) the Stockholder Seller shall have delivered an executed copy of the Guaranty. The Buyer may waive any condition specified in this section if it executes a written waiver to that effect at or prior to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alion Science & Technology Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be which are required by or on the part of the Seller except with respect to the Company in connection with tax clearance letter issued by the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Connecticut Department of the Disclosure ScheduleRevenue Services;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND Sections 2.1 (first sentence), 2.2 and Clause THIRD hereof 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable threatened; and no judgment, order, decree, stipulation or injunction shall be pending, threatened, or in effect which would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, and no such judgment, order, decree, stipulation or injunction shall be in effectfollowing the Closing;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer documents evidencing the release or termination of all Security Interests on the Company Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests or Stockholder, as written statements from the case may be, lien holders evidencing repayment in each full of all outstanding principal loan amounts and interest with respect to any such jurisdictionloans evidencing such Security Interests;
(g) the Buyer shall have received from Mexican counsel secured financing for the transactions contemplated herein on terms acceptable to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing DateBuyer;
(h) the Company Buyer shall have delivered the original corporate minute books entered into a lease of the Companypremises at 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx on terms acceptable to Buyer;
(i) Xxxx Xxxxxx has entered into an employment agreement with the signatories Buyer on terms satisfactory to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;party to such agreement; and
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
received such other certificates and instruments (k) including certificates of good standing of the Stockholder shall have delivered Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified organizational and operational documents, certificates as to the Buyer a certificate (incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to connection with the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Energy Solutions, Inc.)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of Buyer, to the satisfactionsatisfaction (or to the extent permitted by Legal Requirements, or waiver by the Buyer, which waiver may be inferred by the Buyer agreeing to effect the Closing if certain conditions below are not met) of the following conditions on conditions:
(a) All representations and warranties of Seller and the Members contained in this Agreement shall be true and correct in all material respects at and as of the Closing, and Seller and the Members shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing:.
(ab) There shall not have been any event, circumstance, change or effect that, individually or in the Company aggregate, had or might have a material adverse effect on Seller's Business, operations, Properties or financial condition.
(c) Buyer shall have obtained all received a certificate, dated as of the waiversClosing Date, permits, consents, approvals or other authorizationssigned on behalf of Seller by each of the Members (i) representing and warranting after reasonable investigation that the conditions set forth in Section 5.02(a) and Section 5.02(b) have been duly satisfied, and effected (ii) certifying that the Seller’s Financial Statements have been prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operation of Seller.
(d) Buyer shall have received a certificate, dated as of the registrationsClosing Date, filings signed by an authorized Member of Seller (i) attaching copies of Seller’s Certificate of Formation or Operating Agreement, and noticesany amendments thereto, as may (ii) attaching a good standing certificate of the Seller, duly certified by the Delaware Secretary of State, (iii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the managers or members of Seller which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, (iv) certifying that there are no proceedings for the dissolution or liquidation of Seller and (v) certifying the incumbency, signature and authority of the persons of Seller authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be required executed by Seller.
(e) All proceedings to be taken by Seller or with respect to the Company Members in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Buyer and its counsel, and Buyer 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.
(f) Seller shall have furnished Buyer with a certified copy of all necessary action by Seller and the Members approving Seller's execution, delivery and performance of this Agreement.
(g) The Board of Directors of Buyer shall have approved this Agreement, the Ancillary Agreements and Buyer’s acquisition of the Purchased Assets and assumption of the Assumed Liabilities as contemplated by this Agreement, including, without limitation, those referred to .
(h) No proceeding in CLAUSE 2.30 which any of the Disclosure Schedule;Members or Seller shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(bi) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof There shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by suit, action, proceeding or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would investigation: (i) prevent challenging or seeking to restrain or prohibit the consummation of any of the transactions contemplated by this Agreement, (ii) cause relating to the transactions contemplated by this Agreement and seeking to obtain from Buyer any damages that may be material to Buyer, (iii) which would materially and adversely affect the right of Buyer to own the Acquired Assets or operate the Business; or (iv) which relates to any transaction contemplated by this Agreement which, if adversely determined, could have a Material Adverse Effect on Buyer.
(j) There shall not have occurred a Material Adverse Effect (or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect) with respect to the Seller.
(k) Seller shall have procured all consents of third-parties and Governmental Entities necessary for it to consummate the transactions contemplated by this Agreement.
(l) Buyer shall have received an opinion of Xxxxxxx X. Xxxx, counsel to Seller, which is reasonable and customary for transactions of the size and type contemplated by this Agreement.
(m) Buyer shall have received the approval of its primary lender to the consummation of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(fn) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement a loan agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;a commercial lender reasonably acceptable to Buyer including, among other things, the agreement of such lender to provide Buyer with funds sufficient to pay or cause to be paid the Cash Purchase Price and sufficient for the operation of its business and the Business.
(ko) Buyer shall not have identified anything during its business and legal due diligence of Seller that has or in the Stockholder reasonable judgment of Buyer could be expected to have a Material Adverse Effect on the Business.
(p) Xxxxx Xxxxx and Xxxxxx Xxxxxx shall have executed and delivered to Buyer the Employment Agreements.
(q) Xxxxxxxxxxx Xxx and Xxxxxxx Xxxxxx shall have executed and delivered to Buyer a certificate the Consulting Agreements.
(in each case without regard r) Seller shall have executed and delivered to any qualification Buyer the Xxxx of Sale.
(s) Seller and Xxxxxxx & Associates, Inc. (as managing agent of landlord) shall have executed and delivered to knowledge or materiality set forth in any representation or warranty) Buyer an assignment agreement with respect to the effect that Office Lease.
(t) Buyer and each person having an interest in the software technology referred to in Section 2.02(f) shall have entered into the license agreement referred to therein.
(u) Buyer and each employee of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder Seller identified by Buyer shall have delivered entered into employment letters pursuant to the which such employees will become employees of Buyer a certificate that establishes the share distribution of the Companyon terms acceptable to Buyer, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesin its sole discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Veramark Technologies Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, Buyer of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(bi) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof ss.3 above shall be true and correctcorrect in all material respects at and as of the Closing Date;
(cii) no actionthe Sellers shall have performed and complied with all of their respective covenants hereunder in all material respects through the Closing;
(iii) the Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above inss.6(a)(i)-(ii) is satisfied in all respects;
(iv) there shall not be in effect any injunction, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation ruling or injunction would charge of any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or any arbitrator which (iA) prevent prohibits consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iiiB) affect materially and adversely affects the right of the Buyer to own, own the Acquired Assets to operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectBusiness;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(gv) the Buyer shall have received from Mexican counsel all authorizations, consents, and approvals of governments and governmental agencies referred to the Stockholder an opinion as to the matters described in Exhibit 5.1. ginss.3(c) hereto, dated as of the Closing Dateandss.4(c) above;
(hvi) the Company Sellers shall have delivered obtained the original corporate minute books Sale Order on terms and conditions as shall be acceptable to the Buyer, to the extent the subject of separate orders, Final Orders of the Company;
(i) Bankruptcy Court approving the signatories to each Debtors' assumption and assignment of the bank accounts Assigned Contracts to Buyer pursuant to ss.365 of the Company shall have been changed as per Bankruptcy Code, provided that any objections by landlords under ss.365 of the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement Bankruptcy Code with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard respect to any qualification as Assigned Contracts, if sustained, shall not constitute a failure to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of satisfy this Clause 5.1 has been satisfied in all respectscondition; and
(lvii) the Stockholder shall have delivered execution of the Agency and License Agreement by Buyer, Sellers and Agent.
(a) if it executes a writing so stating at or prior to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver satisfaction of the following additional conditions (unless waived in writing by the Buyer, of the following conditions on or prior to the Closing:):
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect in all material respects, in each case as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(b) the Sellers shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding Legal Proceeding affecting the Acquired Business shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would would
(i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own/lease (as appropriate), operate or control any of the assets Acquired Assets, or operations of to conduct the CompanyAcquired Business as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) Sellers shall have modified each Union Contract in a manner acceptable to Buyer, enabling Buyer to sign and register its own union contract;
(e) the Stockholder Sellers shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSellers Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Sellers shall have delivered certificates of appropriate governmental officials in each jurisdiction in which to the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationBuyer an update, as to the due qualification (including tax) of the Company Closing Date, of each list contained in the Disclosure Schedule that lists or Stockholder, as the case may be, in each such jurisdictiondescribes Acquired Assets;
(g) the Buyer Sellers shall have received from Mexican counsel delivered to the Stockholder an opinion as to Buyer documents evidencing the matters described in Exhibit 5.1. g) heretorelease or termination of all Security Interests on the Acquired Assets, dated as and copies of any documentation filed or recorded on the Closing Datepublic record terminating such Security Interests, if any;
(h) the Company each person listed on Schedule 5.2(i) hereto shall have delivered the original corporate minute books evidenced such person’s acceptance of the Companyemployment offer of Buyer by countersigning and delivering an employment offer letter in form and substance satisfactory to the Buyer or Seller shall have replaced such person with an person reasonably acceptable to Buyer (Buyer cannot unreasonably refuse to accept such replacement);
(i) the signatories to each of the bank accounts of the Company Sellers shall have been changed executed and delivered to the Buyer the Transition Services Agreement substantially in the form attached hereto as per Exhibit D-1 (the Buyer's instructions“Transition Services Agreement”);
(j) the Buyer or its designee Sellers shall have entered into an Employee executed and delivered the modification to the Manufacturing Agreement, which shall terminate the Manufacturing Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxrespect to Mexican Operations and transfer to Foxconn the Manufacturing Agreement with respect to the Hungarian Operations;
(k) Eighty-five percent (85%) of the Stockholder individuals to whom Buyer extends an offer of employment shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; andaccepted such offer.
(l) the Stockholder Buyer (or its Affiliate) shall have delivered received all of the appropriate approvals and documentation evidencing that, as of the Closing, Buyer’s Affiliate it may operate under an IMMEX Program; and
(m) the Buyer shall have received such other certificates and instruments (including certificates of good standing of the Sellers in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified organizational documents, certificates as to the Buyer a certificate that establishes incumbency of officers and the share distribution adoption of authorizing resolutions, NAFTA certificates of origin with respect to the Company, and indicating that no other person other than Inventory) as it shall reasonably request in connection with the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on or prior to the ClosingClosing Date of each of the following additional conditions:
(a) The representations and warranties of the Company Seller contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, with the same effect as if made on and as of the Closing Date.
(b) The Seller shall have obtained duly performed and complied in all material respects with all agreements and conditions required by this Agreement and each of the waivers, permits, consents, approvals Ancillary Documents to be performed or other authorizations, and effected all complied with by it on or prior to the Closing Date.
(c) The Buyer shall have received a certificate of an executive officer of the registrationsSeller, filings dated the Closing Date, certifying that the conditions specified in paragraphs (a) and notices(b) of this Section 6.2, as the case may be required by be, have been fulfilled.
(d) The Buyer shall have received an opinion of Debevoise & Xxxxxxxx, special counsel to the Seller, substantially in the form of Exhibit A or with respect such changes thereto as are reasonably satisfactory to the Company Buyer.
(e) The Seller shall have delivered to the Buyer a certificate of the Seller, dated the Closing Date, setting forth the name, address and federal tax identification number of the Seller and stating that the Seller is not a "foreign person" within the meaning of section 1445 of the Code, such certificate to be in the form set forth in the Treasury Regulations thereunder.
(f) The Seller shall have delivered to the Buyer (i) certified copies of the certificate of incorporation and the by-laws of the Seller, (ii) certified copies of resolutions of the board of directors of the Seller approving the entering into and completion of the transactions contemplated by this Agreement and the Ancillary Documents to which the Seller is a party and (iii) an incumbency certificate of the Seller containing a certified list of the officers and directors of the Seller authorized to sign this Agreement or the Ancillary Documents, together with their specimen signatures; it being understood that all such documents shall be certified as of the Closing Date by the Secretary or an Assistant Secretary of the Seller.
(g) The Seller shall have delivered to the Buyer the consent of Magic Software Enterprises, Inc. to the assignment of the Magic Solutions Partner Agreement in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eplus Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Sections 2.2 and 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable threatened; and no judgment, order, decree, stipulation or injunction shall be in effect that would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, and no such judgment, order, decree, stipulation or injunction shall be in effectfollowing the Closing;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates to the Buyer an updated list of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationAcquired Assets, as of the day prior to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionClosing Date;
(g) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(h) the Buyer shall have received an opinion from Mexican counsel to the Stockholder an opinion Seller in substantially the form attached hereto as Exhibit E, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts Key Employees shall not have taken any action which would be prohibited thereby in any material respect if such Person's Employment Agreement were in effect at the time of such action and the Company Seller shall have been changed as per no knowledge of any such Key Employee's intention not to accept employment by Buyer following the Buyer's instructionsClosing;
(j) the Buyer or its designee shall have entered into an Employee Agreement a sublease or assignment of the Lease reasonably satisfactory to Seller, or Buyer shall have entered into a new lease with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxthe landlord of the property underlying the Lease;
(k) the Stockholder Buyer or a successor entity thereto shall have delivered received aggregate gross proceeds of at least $4.0 million from the sale of its securities;
(l) no Seller Material Adverse Effect shall have occurred;
(m) the Buyer shall be reasonably satisfied that the issuance and sale of the Shares are exempt from the registration requirements of the Securities Act;
(n) the Seller shall have received all necessary consents to the Buyer a certificate (in each case without regard to assignment of any qualification material customer contracts, as to knowledge or materiality set forth in any representation or warrantySection 2.10(c) of the Disclosure Schedule, which consent may be conditioned on the Closing;
(o) the Buyer and its attorneys, accountants, lenders and other representatives and agents shall have satisfactorily completed their due diligence investigation of the Seller and the Business;
(p) the Buyer shall have received such other certificates and instruments (including certificates of good standing of the Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the effect that each incumbency of officers and the conditions specified adoption of authorizing resolutions) as it shall reasonably request in clauses connection with the Closing;
(a), (b), (c), q) the Shareholders shall have signed such share exchange agreements and (d), of this Clause 5.1 has been satisfied other documents as the Buyer may reasonably request in all respectsconnection with the share exchange transaction currently contemplated by the Buyer; and
(lr) the Stockholder shall Buyer and its independent accountants have delivered to been provided with audited financial statements of the Seller, or have obtained such information as the Buyer a certificate that establishes the share distribution deems necessary or desirable, in its sole discretion, to prepare audited financial statements of the Company, and indicating that no other person other than Seller after the Stockholder owns or has any right upon the SharesClosing hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Suncrest Global Energy Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- effect the purchase of the Purchased Assets and the other transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date (or the waiver by the Buyer) of the following conditions:
(a) 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 or Government Authority 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) The Buyer shall have received all of the Buyer Required Regulatory Approvals (other than those approvals which if not obtained, would not individually or in the aggregate, create a Material Adverse Effect), in each case subject to terms and conditions that could not reasonably be expected to, in the aggregate, have a Buyer Material Adverse Effect
(d) The Sellers shall have performed and complied with in all material respects the covenants, agreements and obligations contained in this Agreement which are required to be performed and complied with by the Sellers on or prior to the Closing Date;
(e) The representations and warranties of the Sellers set forth in this Agreement shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date, except that any representations and warranties made as of a specified date shall continue on the Closing Date to be true and correct in all material respects as of such specified date;
(f) The Buyer shall have received a certificate from an authorized officer of the Sellers, dated the Closing Date, to the effect that, to such officers' Knowledge, the conditions set forth in Sections 7.1(d) and (e) have been satisfied by the Sellers;
(g) Since the date of this Agreement, no Material Adverse Effect shall have occurred and be continuing;
(h) The Buyer shall have received an opinion from the Seller's counsel reasonably acceptable to the Buyer, dated the Closing Date and satisfactory in form and substance to the Buyer and its counsel, substantially to the effect that:
(1) The Seller, NYSEG and SRC are each corporations duly incorporated, validly existing and in good standing under the laws of their respective jurisdictions of incorporation and the Seller and NYSEG have full corporate power and authority to execute and deliver the Agreement and each of the Ancillary Agreements, as applicable, and to consummate the transactions contemplated by this them thereby; and the execution and delivery of the Agreement is subject to and each of the satisfaction, or waiver Ancillary Agreements by the Buyer, Seller and NYSEG and the consummation of the following conditions on or prior to the Closing:
(a) the Company shall have obtained all sale of the waivers, permits, consents, approvals or Purchased Assets and the other authorizations, transactions contemplated thereby by the Seller and effected NYSEG have been duly and validly authorized by all necessary corporate action required on the part of the registrations, filings Seller and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleNYSEG;
(b2) the representations The Agreement and warranties each of the Stockholder set forth in Clause SECOND Ancillary Agreements have been duly and Clause THIRD hereof shall be true validly executed and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching Seller and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or StockholderNYSEG, as the case may be, and constitute legal, valid and binding agreements of the Seller and NYSEG, enforceable against the Seller and NYSEG in each accordance with its terms, except that such jurisdictionenforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity);
(g3) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoThe execution, dated as delivery and performance of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to Agreement and each of the bank accounts Ancillary Agreements by the Seller and NYSEG do not (A) conflict with the Certificate of Incorporation or Bylaws, as currently in effect, of the Company shall have been changed as per the Buyer's instructions;
Seller or NYSEG or (j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyB) to the effect that each knowledge of such counsel constitute a violation of or default under the Seller Applicable Contracts. "Seller Applicable Contracts" means those agreements or instruments set forth on a Schedule attached to the 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 the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns Seller or has any right upon the Shares.NYSEG;
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer -------------------------------------- to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement the Buyer in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closingconditions:
(a) the Company Stockholders shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect necessary to the Company in connection with consummate the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedulehereby;
(b) the representations and warranties of the Stockholder Company Stockholders set forth in Clause SECOND Articles II and Clause THIRD hereof III above shall have been true and correct in all material respects when made on the Agreement Date and shall be true and correctcorrect in all material respects as of the Closing Date as if made as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date;
(c) each of the Company Stockholders shall have performed or complied with their agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing and there shall have been no material adverse change in the business, operating or financial condition or prospects of the Company;
(d) no action, suit or proceeding concerning the Company, any Subsidiary or any of the Company Stockholders shall be pending or threatened by or before any Governmental Entity wherein an unfavorable unfavourable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer Company to own, operate or control any of the its assets or operations of the Companyoperations, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) each of the Stockholder Company Stockholders and other Sellers shall have delivered to the Buyer a certificate (except for Section (d) above, without qualification as to knowledge or materiality or otherwise) to the stock certificates representing the Shares, in effect that each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: conditions specified in Sections (ia) the charter documents through (estatutos socialesd) of the Company and (ii) the resolutions of the Board of Directors of the Company required this Section 6.1 applicable to authorize this Agreement.such person is satisfied in all respects;
(f) on the Closing Date, each of the Warrantors (other than Reads Trustees Limited) and the Other Sellers shall have executed and delivered to the extent reasonably available Buyer an employment agreement in the applicable jurisdictioncase of X. Xxxx in the form set out in Exhibit B1, in the Company shall have delivered certificates case of appropriate governmental officials X. Xxxxx in each jurisdiction the form set out in which Exhibit B2, in the Company or ---------- ---------- case of R. House in the Stockholder is incorporatedform set out in Exhibit B3, resident or required to qualify to do business as a foreign corporationin the case of X. Xxxxxx in ---------- the form set out in Exhibit B4, as to in the due qualification (including tax) case of X. Xxxxx in the form set out in ---------- Exhibit B5 and in the case of the Company or Stockholder, as Other Sellers (other than Xxxx Xxxxxxx) in the case may be, ---------- form set out in each Exhibit I and such jurisdictionemployment agreements shall be in full force --------- and effect on the Closing Date in accordance with their respective terms;
(g) the Buyer shall have received from Mexican counsel Xxxxx Xxxxxx an opinion in the form set forth in Exhibit C addressed to the Stockholder an opinion Buyer and dated as of the Closing --------- Date;
(h) the Buyer shall have received the resignations, effective as of the Closing Date, of all the directors of the Company other than X. Xxxx, R. House and X. Xxxxx, and of X. Xxxxx as Secretary of the Company each such resignation to be in a form acceptable to the Buyer accompanied by the appropriate Companies House Forms;
(i) the Warrantors and the Buyer shall have executed and delivered the Deed of Tax in the form set forth in Exhibit L; ---------
(j) the Buyer, the Warrantors, the Stockholders' Representative, and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(k) the Company Stockholders shall have delivered to the Buyer a certificate of the Registrar of Companies as to the matters described legal existence of the Company and a certificate of the Secretary of State of Georgia as of a date within five business days of the Closing Date as to the legal existence and good standing of the Subsidiary in Exhibit 5.1. g) hereto, dated Georgia as of the Closing Date;
(hl) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Stockholders shall have delivered to the Buyer a certificate (in each case without regard to any qualification of the Georgia Department of Revenue as of a date within five business days of the Closing Date as to knowledge or materiality set forth in any representation or warranty) to the effect that each tax good standing of the conditions specified Company in clauses (a), (b), (c), and (d), Georgia as of this Clause 5.1 has been satisfied in all respects; anda date within five business days of the Closing Date;
(lm) the Stockholder Company Stockholders shall have delivered to the Buyer a certificate that establishes certificates of the share distribution Secretary of the Company attesting to the incumbency of the Company's officers, the authenticity of the resolutions authorizing the transactions contemplated by this Agreement, and indicating the authenticity and continuing validity of the charter documents of the Company;
(n) the Buyer shall have received the statutory books and corporate seals of the Company;
(o) the Buyer receiving a deed in the form of Exhibit K relating to --------- the termination of the Shareholders Agreement dated 4th February 1991 between X. Xxxx, Corporate Business Advisers Limited, Reads Trustees Limited, X. Xxxxxxx, X. Xxxxx, X. Xxxxxx, R. House and the Company (the "Shareholders' Agreement") and confirmation that no other person other than the Stockholder owns or (Pounds)234,960 Unsecured Loan Stock 2010 of the Company created by a Resolution of the Directors dated 4th February 1991 has any right upon been repaid;
(p) the Shares.new articles of association of the Company (the "New Articles") in the form set forth in Exhibit G being adopted by the Company, the --------- authorised share capital being increased, and 7,000 ordinary shares the 1997 Shares and the 1998 Shares (as therein defined) being allotted and issued fully paid at par;
(q) the Buyer shall have received an un-audited balance sheet and profit and loss account and related statements of income, retained earnings, stockholders' equity and cash flows for the year ended December 31, 1996;
(r) the Buyer shall have received an agreement in the form set forth in Exhibit D (the "Boston Agreement") duly executed by the Company Stockholders, --------- Atlanta and the Buyer relating to the Agreement dated 6th August 1993 between COBA-M.I.D. inc, C.M. Management Systems Limited, Inc., Xxxx Xxxxxxx, Xxxxxx Belt, and Xxxxxxxxxx Xxxxx; and
(s) the Buyer receiving an agreement in the form set forth in Exhibit ------- J, relating to the termination of the agreements between the Company and the - Partnership for the provision of consultancy services by the Partnership (the "Partnership Termination Deed");
(t) the Buyer shall have received a letter addressed to the Buyer from Reads Trustees Limited concerning the disposition of the assets of the Trust known as the Xxxxxxx Xxxx Life Interest Trust in the form set forth in Exhibit ------- E;
Appears in 1 contract
Samples: Stock Purchase Agreement (Renaissance Solutions Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject to are subject, at the satisfaction, or waiver by option of the Buyer, to the satisfaction or waiver of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all As of the waiversClosing Date, permitsno suit, consents, approvals action or other authorizations, and effected all proceeding (excluding any such matter initiated by or on behalf of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(bBuyer) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein Authority seeking to restrain the Buyer or prohibit the Closing or seeking Damages against the Buyer or the Company or its Properties as a result of the consummation of this Agreement.
(b) The Company shall have made available to the Buyer a certified copy of all necessary corporate resolutions and actions on its behalf approving the Company’s execution, delivery and performance of this Agreement.
(c) Except for matters disclosed in Company Schedule 3.9(a) or Company Schedule 3.9(b) hereto, since January 1, 2016 and up to and including the Closing, there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, had or might have a Material Adverse Effect on the Company.
(d) The Buyer shall have received a certificate issued by the New York Secretary of State (and of each state or territory in which the Company is qualified as a foreign company), dated as of a date no less than seven (7) days prior to the Closing Date as to the good standing of the Company in such states.
(e) No proceeding in which any of the Sellers or the Company shall be a debtor, defendant or party seeking an unfavorable judgmentorder for its own relief or reorganization shall be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(f) The Buyer shall have received all minute books of the Company.
(g) The Buyer shall have received constructive possession of all originals and copies of all agreements, orderinstruments, decreedocuments, stipulation deeds, books, records, files and other data and information within the possession of the Company or injunction would any Seller pertaining to the Company and the Business (collectively, the “Records”); provided, however, that for the avoidance of doubt the Sellers may retain (i) prevent consummation copies of any Tax Returns and copies of the transactions contemplated by this AgreementRecords relating thereto, (ii) cause copies of all Records that any Seller is reasonably likely to need for complying with Legal Requirements or contractual commitments, and (iii) copies of any Records that in the reasonable opinion of any Seller will be or could reasonably be expected to be required in connection with the performance of such Seller’s obligations hereunder.
(h) To the extent the Buyer provides the Sellers with a list of designees prior to the Closing, evidence satisfactory to the Buyer that such Buyer designees are the only authorized signatories with respect to the Company’s various accounts, credit lines, safe deposit boxes or vaults set forth or required to be set forth in Company Schedule 3.18 hereto.
(i) The Buyer shall have received a certification of the Sellers’ non-foreign status as set forth in Treasury Regulation Section 1.1445-2(b), signed under penalties of perjury, in form and substance reasonably satisfactory to the Buyer.
(j) Xxxxx Xxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit B.
(k) Xxxxx XxXxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit C.
(l) Sacramone shall have executed an employment agreement with the Company in the form attached hereto as Exhibit D.
(m) Xxxxxxx Xxxxxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit E.
(n) Xxxxxx Xxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit F.
(o) Xxxxxxx Xxxxxxx shall have executed an employment agreement with the Company in the form attached hereto as Exhibit G.
(p) The Buyer shall have obtained financing arrangements sufficient, in its sole discretion, to consummate the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;herein.
(dq) The Buyer shall have received the Stockholder Company Financial Statements.
(r) The Company shall have delivered to the Buyer the stock certificates representing the SharesLandlord Consent, in each case duly endorsed or with duly executed stock powers attached;by the Landlord, which obligation shall include the Company’s compliance with the prerequisites and conditions to Landlord’s consent to an assignment of the Lease as provided therein.
(es) the The Company shall have delivered a certificateto the Buyer the Lease Estoppel, duly executed by the Secretary Landlord, without material deviation from the Lease Certifications as adapted to the Lease as set forth on attached Exhibit I.
(t) The Company shall have delivered to the Buyer the Sublease Estoppel, duly executed by the Subtenant, without material deviation from the Lease Certifications as adapted to the Sublease as set forth on attached Exhibit I.
(u) The Sellers shall have performed and complied in all material respects with the covenants and obligations set forth in this Agreement required to be performed by and complied with by Sellers at or before the Closing Date.
(v) Except to the extent that any inaccuracies in any such representations and warranties would not have, or would not reasonably be expected to have, a Material Adverse Effect, the representations and warranties of the Sellers contained in Article 4 shall be true and correct in all respects (without giving effect to any “materiality” and “Material Adverse Effect” qualifiers therein) as of the Effective Date and as of the Closing Date as if made on and as of the Closing Date, except for those representations and warranties contained in Article 4 that relate to a specific date, which representations and warranties shall be true and correct as of such date.
(w) Between the Effective Date and the Closing Date, there shall not have occurred any action, inaction, event, circumstance, change or development which, individually or in the aggregate, has resulted in or would reasonably be expected to result in a Material Adverse Effect to the Company.
(x) By the Closing Date, attaching and certifying as to: (i) the charter documents (estatutos sociales) Sellers shall have delivered to the Buyer documentation, reasonably satisfactory to the Buyer, substantiating that distributions made by the Company to its shareholders have been made in the aggregate, since the formation of the Company and (ii) through the resolutions Closing Date, in proportion to the shareholders’ relative ownership of Common Stock and have been or will be reported to the Board of Directors of the Company required to authorize this AgreementIRS as such.
(fy) to the extent reasonably available in the applicable jurisdiction, the Company The Sellers shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) certificate duly executed by an executive officer of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoCompany, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories , in a form and substance reasonably satisfactory to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered , certifying to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each fulfillment of the conditions specified in clauses (a), (b), (c), and (d), of set forth this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSection 6.2.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate complete the Closing and otherwise to effect the transactions contemplated by this Agreement is shall be subject to the satisfactionsatisfaction at or prior to the Closing of the following additional conditions, compliance with which or waiver the occurrence of which may be waived, in whole or in part, by the Buyer, :
(a) The representations and warranties of the following conditions on Seller contained in this Agreement that are qualified as to materiality shall be true and correct, and representations and warranties of the Seller contained in this Agreement that are not so qualified shall be true and correct in all material respects, in each case, at the time made and as of the Closing Date as if made at and as of such time;
(b) The Seller shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by the Seller under this Agreement at or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit The Seller shall have delivered or proceeding shall caused to be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any delivered to the Buyer each of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be documents specified in effectSECTION 11.3;
(d) the Stockholder The Buyer shall have delivered received or otherwise hold all third-party approvals (including those required under any Material Contract), clearances, consents, and authorizations necessary to permit the Buyer (or, if applicable, the Buyer shall have received adequate assurances reasonably satisfactory to them that all such material approvals, clearances, consents, and authorizations will be given) to operate the Business as it is currently conducted, including the consent described in SCHEDULE 6.2, and no such authorizations shall be revoked, or, to the extent applicable, shall fail to be provided to the Buyer without additional expense and subject to no additional restrictions or burdens on the stock certificates representing Buyer; PROVIDED, HOWEVER, that the Sharescondition set forth in this SECTION 11.6(D) shall be deemed satisfied (but not in respect of the consent described in SCHEDULE 6.2) unless the failure to obtain any such approvals, clearances, consents or authorizations, in each case duly endorsed or the aggregate, would reasonably be expected to materially and adversely impair the Buyer's ability to conduct the Business as presently conducted consistent with duly executed stock powers attachedpast practice;
(e) The Buyer shall not have determined, in its reasonable judgment, that any supplements to the Company shall have delivered a certificate, executed Schedules made after the date hereof by the Secretary Seller or the matters described therein, individually or in the aggregate, would have a Material Adverse Effect on the assets, properties or business of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Buyer;
(f) to the extent reasonably available in the applicable jurisdiction, the Company The Buyer shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required received evidence satisfactory to qualify to do business as a foreign corporation, as to the due qualification (including tax) it of the Company or Stockholderrelease of all Liens on any of the Purchased Assets, as the case may be, in each such jurisdiction;other than Permitted Liens; and
(g) This Agreement and the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company transactions contemplated hereby shall have been changed as per approved by the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each requisite vote of the conditions specified in clauses (a), (b), (c)shareholders of the Seller as required by the South Carolina Business Corporation Act of 1988 and the Seller's constitutive documents, and (d), of this Clause 5.1 has such approval is in full force and effect and shall not have been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesrevoked.
Appears in 1 contract
Samples: Asset Purchase Agreement (Unifi Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of Buyer, to the satisfactionsatisfaction (or to the extent permitted by Legal Requirements, or waiver by the Buyer, which waiver may be inferred by the Buyer agreeing to effect the Closing if certain conditions below are not met) of the following conditions on conditions:
(a) All representations and warranties of Seller and the Members contained in this Agreement shall be true and correct in all material respects at and as of the Closing, and Seller and the Members shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing:.
(ab) There shall not have been any event, circumstance, change or effect that, individually or in the Company aggregate, had or might have a material adverse effect on Seller’s Business, operations, Properties or financial condition.
(c) Buyer shall have obtained all received a certificate, dated as of the waiversClosing Date, permits, consents, approvals or other authorizationssigned on behalf of Seller by each of the Members (i) representing and warranting after reasonable investigation that the conditions set forth in Section 5.02(a) and Section 5.02(b) have been duly satisfied, and effected (ii) certifying that the Seller’s Financial Statements have been prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operation of Seller.
(d) Buyer shall have received a certificate, dated as of the registrationsClosing Date, filings signed by an authorized Member of Seller (i) attaching copies of Seller’s Certificate of Formation or Operating Agreement, and noticesany amendments thereto, as may (ii) attaching a good standing certificate of the Seller, duly certified by the Delaware Secretary of State, (iii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the managers or members of Seller which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, (iv) certifying that there are no proceedings for the dissolution or liquidation of Seller and (v) certifying the incumbency, signature and authority of the persons of Seller authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be required executed by Seller.
(e) All proceedings to be taken by Seller or with respect to the Company Members in connection with the transactions contemplated hereby and all documents incident thereto shall be reasonably satisfactory in form and substance to Buyer and its counsel, and Buyer 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.
(f) Seller shall have furnished Buyer with a certified copy of all necessary action by Seller and the Members approving Seller’s execution, delivery and performance of this Agreement.
(g) The Board of Directors of Buyer shall have approved this Agreement, the Ancillary Agreements and Buyer’s acquisition of the Purchased Assets and assumption of the Assumed Liabilities as contemplated by this Agreement, including, without limitation, those referred to .
(h) No proceeding in CLAUSE 2.30 which any of the Disclosure Schedule;Members or Seller shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(bi) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof There shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by suit, action, proceeding or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would investigation: (i) prevent challenging or seeking to restrain or prohibit the consummation of any of the transactions contemplated by this Agreement, (ii) cause relating to the transactions contemplated by this Agreement and seeking to obtain from Buyer any damages that may be material to Buyer, (iii) which would materially and adversely affect the right of Buyer to own the Acquired Assets or operate the Business; or (iv) which relates to any transaction contemplated by this Agreement which, if adversely determined, could have a Material Adverse Effect on Buyer.
(j) There shall not have occurred a Material Adverse Effect (or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect) with respect to the Seller.
(k) Seller shall have procured all consents of third-parties and Governmental Entities necessary for it to consummate the transactions contemplated by this Agreement.
(l) Buyer shall have received an opinion of Xxxxxxx X. Xxxx, counsel to Seller, which is reasonable and customary for transactions of the size and type contemplated by this Agreement.
(m) Buyer shall have received the approval of its primary lender to the consummation of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(fn) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement a loan agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;a commercial lender reasonably acceptable to Buyer including, among other things, the agreement of such lender to provide Buyer with funds sufficient to pay or cause to be paid the Cash Purchase Price and sufficient for the operation of its business and the Business.
(ko) Buyer shall not have identified anything during its business and legal due diligence of Seller that has or in the Stockholder reasonable judgment of Buyer could be expected to have a Material Adverse Effect on the Business.
(p) Xxxxx Xxxxx and Xxxxxx Xxxxxx shall have executed and delivered to Buyer the Employment Agreements.
(q) Xxxxxxxxxxx Xxx and Xxxxxxx Xxxxxx shall have executed and delivered to Buyer a certificate the Consulting Agreements.
(in each case without regard r) Seller shall have executed and delivered to any qualification Buyer the Xxxx of Sale.
(s) Seller and Xxxxxxx & Associates, Inc. (as managing agent of landlord) shall have executed and delivered to knowledge or materiality set forth in any representation or warranty) Buyer an assignment agreement with respect to the effect that Office Lease.
(t) Buyer and each person having an interest in the software technology referred to in Section 2.02(f) shall have entered into the license agreement referred to therein.
(u) Buyer and each employee of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder Seller identified by Buyer shall have delivered entered into employment letters pursuant to the which such employees will become employees of Buyer a certificate that establishes the share distribution of the Companyon terms acceptable to Buyer, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesin its sole discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Veramark Technologies Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, satisfaction or waiver by the Buyer, Buyer of the following conditions on or prior to the Closingconditions:
(a) the Company sale of the Acquired Assets by the Sellers to the Buyer as a good faith purchaser for value within the meaning of Section 363(m) of the Bankruptcy Code and free and clear of all liens, claims, encumbrances and interests as contemplated by this Agreement shall have been approved by the Bankruptcy Court pursuant to the Approval Order which, as of the Closing Date, shall be in full force and effect, and not stayed, modified, vacated, amended or revoked;
(b) the assumption and assignment by the Sellers of the Assigned Contracts and Leases to the Buyer shall have been authorized and approved by an order of the Bankruptcy Court and such order is in full force and effect without any modification or amendment, as of the Closing Date, and Seller shall have paid the Cure Amounts related to each of the Assigned Contracts and Leases;
(c) the Sellers or the Subsidiaries, as the case may be, shall have obtained all of the waivers, permits, consents, approvals or other authorizationsauthorization from Governmental Entities that are required to consummate the transactions contemplated hereby and operate the Facilities, and effected shall have obtained reasonable assurances that the tax holiday and pioneer agreements and similar arrangements of the Foreign Entities shall not cease or be materially diminished as a result of the Foreign Entities becoming subsidiaries of the Buyer, except to the extent the failure to obtain such waivers, permits, consents, approvals or other authorization does not have any material effect on the ability of the Buyer to operate the Facilities, individually or taken as a whole;
(d) the Sellers and the Subsidiaries shall have obtained, without cost to the Buyer, all of the registrationswaivers, filings and noticespermits, as may be consents, approvals or other authorization from any third parties (other than Governmental Entities ) that are required by or with respect to the Company in connection with consummate the transactions contemplated by this Agreementhereby and operate the Facilities, including, without limitation, those referred to any consents necessary in CLAUSE 2.30 connection with the assignment or deemed assignment of any of the Disclosure ScheduleAssigned Contracts and Leases, the Intellectual Property or the Permits, except to the extent the failure to obtain such waivers, permits, consents, approvals or other authorization does not have any material effect on the ability of the Buyer to operate the Facilities, individually or taken as a whole;
(be) all of the representations and warranties of the Stockholder Sellers and the Subsidiaries set forth in Clause SECOND and Clause THIRD Article II hereof as qualified by the Schedules (without giving effect to any revisions, modifications or updates pursuant to Section 4.12 hereof), shall be true and correctcorrect in all material respects as of the date hereof and as of the Closing as if made as of the Closing (other than those representations and warranties which are qualified as to materiality, which shall be true and correct in accordance with their terms) regardless of any examination or investigation made at any time by or on behalf of the Buyer or the actual knowledge of any of the Buyer's officers, directors, employees or agents at the time of the Buyer's execution of this Agreement, except to the extent any of such representations and warranties are made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of the specified date;
(cf) the Sellers and the Subsidiaries shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(1) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity Entity, court or arbitrator wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this AgreementAgreement (except for the Bankruptcy Case, the Provision Motion and the Approval Motion), (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) materially and adversely affect adversely the right of the Buyer to own, operate or control any of the assets or operations of Acquired Assets following the CompanyClosing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
; (d2) there shall be no motions pending to convert or dismiss the Stockholder shall have delivered Chapter 11 Cases or to appoint a trustee for the Buyer the stock certificates representing the Shares, in each case duly endorsed Sellers or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company any Subsidiary; and (ii3) the resolutions of the Board of Directors of the Company required to authorize this Agreementthere shall be no injunctions or insolvency proceedings involving any foreign Subsidiary.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered Sellers and the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Subsidiaries shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (ad), (b), (c), e) and (d), f) of this Clause Section 5.1 has been is satisfied in all respects;
(i) since the Filing Date, except for the commencement of the Chapter 11 Cases, there shall have been no Material Adverse Effect, and no event or development has occurred which would reasonably be foreseen to result in a Material Adverse Effect, except as disclosed in Schedule 2.7 to this Agreement or as disclosed by the Sellers to the Buyer prior to November 19, 2001;
(j) since the Filing Date, except for the commencement of the Chapter 11 Cases, there shall have been no change or effect relating to the Acquired Assets, individually or taken as a whole, that is or is reasonably likely to be material and adverse to the ability of the Buyer to own, operate or control the Acquired Assets following the Closing; except as disclosed by the Sellers to the Buyer prior to November 19, 2001;
(k) the Sellers shall have provided to the Buyer the legal opinions of counsel set forth on Schedule 5.1(k);
(l) (A) no customer of the Sellers that is listed on Schedule 5.1(l) attached hereto shall have terminated its relationship with the Sellers or any agreement relating thereto or given notice of its intent to do so, and (B) no such customer shall have merged with or into or been acquired by another entity or otherwise been subject to a change of control (or announced its intention or entered into an agreement to do any of the same) if such other entity uses (1) Jabil Circuit Inc., (2) Solectron Corp., (3) SCI Systems Inc., (4) Celestica Inc. or (5) Sanmina Corp. as its primary contract manufacturer;
(m) no more than ten (10) individuals listed on Schedule 4.13 attached hereto shall have terminated his or her employment with the Sellers or given notice of his or her intent to do so;
(n) the Sellers shall have achieved if the Closing occurs during December, 2001, aggregate revenue for the months ending August 31, 2001, September 30, 2001, October 31, 2001 and November 30, 2001 of at least $55 million. All revenue calculations shall be made in accordance with U.S. GAAP applied on a consistent basis with past practices of the Sellers;
(o) MCMS International shall have transferred, at no cost or tax effect to MCMS International, its remaining subsidiaries or the Buyer, to MCMS or a subsidiary of MCMS that is not being purchased by the Buyer all of the capital stock or other ownership interests of MCMS Asia Pacific and MCMS Singapore so that the Mexican Entities are no longer owned by MCMS International but rather MCMS, or such subsidiary of MCMS, shall directly own MCMS Asia Pacific and MCMS Singapore, which in turn shall continue to own MCMS Mexico;
(p) at least five business days prior to Closing, the Buyer shall have received from the Seller, at the Seller's cost and in form and substance reasonably satisfactory to the Buyer, a commitment for an ALTA Form B Owner's Policy of Title Insurance (the "Title Policy") from a national title insurance company in an amount equal to the portion of the Purchase Price allocated to the Owned Real Property;
(q) Seller shall have paid, or made reasonable arrangements or set-asides for payments, of any break-up or similar fee due by it under the Prior Agreement; and
(lr) the Stockholder actions as contemplated by Section 4.16 (relating to Foreign Entity Inter-Company Payables and Foreign Entity Inter-Company Receivables) shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesoccurred.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing of the following conditions on (any one or prior to the Closing:
(a) the Company shall have obtained all more of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as which may be required waived in whole or in part by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;Buyer):
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder The Seller shall have delivered to the Buyer the stock certificates representing the Sharesa Certificate of Good Standing, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered certified as of a certificate, executed recent date by the Secretary of State of Delaware and showing the Company, attaching and certifying as to: (i) Seller to be in good standing in the charter documents (estatutos sociales) State of the Company and Delaware.
(ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder The Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses CEO or other authorized officer of the Seller certifying (a)i) a copy of Seller’s charter and all amendments thereto, (b)ii) a copy of the resolution or resolutions adopted by the directors and stockholders of the Seller as necessary to authorize the execution, (c)delivery and performance of this Agreement by the Seller, and (d)iii) as to the incumbency of the directors and/or officers of the Seller executing this Agreement and all other documents contemplated hereby to which the Seller is a party.
(iii) The Seller shall have executed and delivered to the Buyer an Assignment of Patents and Xxxx of Sale, both in substantially the form of Exhibit C hereto and such bills of sale, assignments, endorsements and other good and sufficient instruments of transfer as Buyer may reasonably request, in recordable form where necessary, conveying and transferring the Assets to the Buyer as provided in this Clause 5.1 has Agreement, and the Seller and the IBS Recipients shall have executed and delivered to the Buyer a mutual release substantially in the form of Exhibit E hereto.
(iv) The Seller shall have performed all of its agreements and covenants which are herein required to have been satisfied performed by it at or prior to the Closing, including but not limited to the delivery of the Physical Assets and documentation to the Buyer.
(v) The representations and warranties of the Seller set forth herein shall be correct in all respects; andmaterial respects as if made on and as of the Closing, except as any such representation or warranty by its terms refers to a specific date.
(lvi) There shall not have been issued any injunction or any similar legal order prohibiting or restraining the Stockholder Seller from consummating any of the transactions herein contemplated and which shall be in effect as of the Closing.
(vii) All Physical Assets are delivered by Seller and accepted by Buyer “AS IS” without any representation by Seller as to condition or value of any Asset other than as expressly provided in Section 6 below.
(viii) The Seller shall have delivered to the Buyer the Neogenix Oncology, Inc. Stock Subscription and Right of First Refusal Agreement in substantially the form of Exhibit F hereto, executed by all IBS Recipients who are receiving Shares and Warrants.
(ix) The Seller shall have delivered to the Buyer (a) the written consent of Xxxxxxx Xxxxxx LLP, as creditor of Seller, to this Agreement and the transactions contemplated herein, and (b) a certificate that establishes the share distribution Seller has settled or is settling within 90 days of the CompanyClosing all claims listed on Schedule 6(b)(2) hereto and any other claims of which it is aware by any of the Seller’s creditors.
(x) The Seller shall have delivered to the Buyer the Escrow Agreement in substantially the form of Exhibit G hereto, executed by Xxxxxxx Savage LLP, as escrow agent for the benefit of the Seller and indicating that no other person its shareholders (other than the Stockholder owns or has any right upon Debenture Holders) and creditors (the Shares“Escrow Agreement”).
Appears in 1 contract
Samples: Patent Purchase and Transfer Agreement (Neogenix Oncology Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by to be consummated at the Closing pursuant to this Agreement and the Asset Purchase Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer), at or before the Closing, of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) that the representations and warranties of the Stockholder Seller set forth in Clause SECOND Article II of this Agreement and Clause THIRD hereof in Article II of the Asset Purchase Agreement are true and correct as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement or the Asset Purchase Agreement or consented to, in writing, by the Buyer or the Asset Buyer, (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correctcorrect as of such date, subject to clause (iii) below), and (iii) for failures to be true and correct as to matters that would not reasonably be expected to have a Business Material Adverse Effect;
(b) that the Seller has performed or complied with in all material respects the agreements and covenants required to be performed or complied with by it under this Agreement and the Asset Purchase Agreement at or prior to the Closing;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of that the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have Seller has delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe "Seller Certificate") to the effect that each of the conditions specified in clauses (a) and (b) of this Section 5.1 are satisfied;
(d) that the Seller has obtained the consent to the assignment to the Asset Buyer at the Closing of the Transferred Contracts listed on Schedule 5.1(d);
(e) that any required consent of the General Director of the Israeli Antitrust Authority (or the expiration of the waiting period considered to be an approval), (b)the OCS, (c)the Israeli Land Authority, the Investment Center and the municipal authorities of Nes Ziona, Israel and Beer Tuvia, Israel to the transactions contemplated by this Agreement and the Asset Purchase Agreement has been obtained, and (d), of that evidence to this Clause 5.1 effect has been satisfied in all respectsprovided to the Buyer; and
(lf) that no provision of applicable law and no judgment, injunction, order or decree in effect and issued by any Governmental Entity of competent jurisdiction prohibits the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution consummation of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Samples: Share Purchase Agreement (Savient Pharmaceuticals Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of Buyer, to the satisfactionsatisfaction (or the extent permitted by Legal Requirement, or waiver by the Buyer, ) of the following conditions on conditions:
(a) All representations and warranties of the Company and the Shareholder contained in this Agreement shall be true and correct in all material respects at and as of the Closing, and the Company and the Shareholder shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing:.
(ab) As of the Closing Date, no suit, action or other proceeding shall prohibit consummation of the Closing.
(c) There shall not have been any event, circumstance, change or effect that, individually or in the aggregate, had or might have a material adverse effect on the Company's business, operations, Properties or financial condition.
(d) The Company shall have obtained furnished VGS with a certified copy of all necessary corporate and shareholder action on its behalf approving the Company's execution, delivery and performance of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may this Agreement.
(e) All proceedings to be required taken by or with respect to the Company or the Shareholder in connection with the transactions contemplated by this Agreementhereby and all documents incident thereto shall be satisfactory in form and substance to VGS and its counsel, including, without limitation, those referred to in CLAUSE 2.30 and VGS and said counsel shall have received all such counterpart originals or certified or other copies of the Disclosure Schedule;such documents as it or they may reasonably request.
(bf) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the The Board of Directors of the Parent shall have approved this Agreement and VGS's acquisition of the Purchased Assets contemplated hereby.
(g) No proceeding in which any of the Shareholder or the Company required shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(h) The Company shall have executed and delivered to authorize this VGS the Consulting Agreement.
(fi) to the extent reasonably available in the applicable jurisdiction, the The Company shall have executed and delivered certificates of appropriate governmental officials in each jurisdiction in which to VGS the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;License Agreement.
(j) the Buyer or its designee The Company shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;executed and delivered to VGS the Transfer Restriction Agreement.
(k) the Stockholder The Company shall have executed and delivered to VGS the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each Xxxx of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSale.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions, any of which may be waived by Buyer:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 that are required on the part of the Disclosure ScheduleSeller (which, for the avoidance of doubt, shall not include the PSC Approval or the joint application therefore), all of which must be in the form as is reasonably acceptable to the Buyer;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof Seller that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Buyer set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) no action, suit the Seller shall have performed or proceeding shall complied with in all material respects its agreements and covenants required to be pending performed or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by complied with under this Agreement as of or prior to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectClosing;
(d) the Stockholder Seller shall have delivered to Buyer a duly executed certificate of non- foreign status in the form and manner that complies with Section 1445 of the Code and the Treasury Regulations promulgated thereunder;
(e) the Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses Secretary or an Assistant Secretary (a)or equivalent officer) of the Seller certifying (i) that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, (b), (c)delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, 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 (d), ii) the names and signatures of the officers of the Seller authorized to sign this Clause 5.1 has been satisfied in all respectsAgreement and the other documents to be delivered hereunder; and
(lg) the Stockholder Seller shall have delivered to the Buyer a certificate that establishes certificates representing the share distribution of the Company, and indicating that no other person other than the Stockholder owns Shares duly endorsed in blank or has any right upon the Sharesaccompanied by duly executed stock powers.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of the Buyer, to the satisfaction, or waiver by the Buyer, of the following conditions:
(a) All of the Company Common Stock shall have been tendered to Buyer.
(b) All Redemption Shares shall have been tendered to the Company for redemption and shall have been redeemed and canceled by the Company.
(c) All of the Subordinated Debentures shall have been tendered to the Company and shall have been paid and canceled by the Company.
(d) All representations and warranties of Sellers and the Company contained in this Agreement qualified by materiality shall be true and correct in all respects at Closing and all other representations and warranties of the Sellers and the Company contained in this Agreement shall be true and correct in all material respects at and as of the Closing as if such representations and warranties were made at and as of the Closing, except for changes contemplated by the terms of this Agreement except as and to the extent that the facts and conditions on upon which such representations and warranties are based are expressly required or permitted to be changed by the terms thereof, and the Sellers and the Company shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by Sellers and the Company at or prior to the Closing; provided, however, that the Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(e) As of the Closing Date, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of the Buyer) shall be pending or threatened before any court or governmental agency seeking to restrain the Buyer or prohibit the Closing or seeking Damages against the Buyer, the Company or the Subsidiary or their respective Properties as a result of the consummation of this Agreement.
(f) All notices required to be given in connection with the transactions contemplated by this Agreement shall have been duly and timely given, and there shall not be any preferential purchase rights or consent requirements with respect to the transactions contemplated by this Agreement that have not expired or been waived.
(g) Except for matters disclosed in Schedules 3.08, 3.09 or 3.12 hereto, since the date of the Interim Balance Sheet and up to and including the Closing there shall not have been:
(ai) any change in the business, operations, prospects or financial condition of the Company or the Subsidiary that had or would reasonably be likely to have a material adverse effect on the business, operations, prospects, Properties, securities or financial condition of the Company or the Subsidiary; and
(ii) any damage, destruction or loss to the Company or the Subsidiary (whether or not covered by insurance) that had or would reasonably be likely to have a material adverse effect on the business, operations, prospects, Properties, securities or financial condition of the Company or the Subsidiary.
(h) The Buyer shall have received the opinion of Latham & Watkins, counsel to the Company and the Sellers, dated as of xxx Xlosxxx Xxxe, in form and substance reasonably satisfactory to the Buyer, as to the matters set forth on EXHIBIT I. In rendering such opinion, Latham & Watkins may rely xx to xxxxxxx matters on certificates of officers, directors and shareholders of the Company and on certificates of governmental officials, and as to legal matters on opinions of other counsel reasonably acceptable to the Buyer.
(i) Sellers and Company shall have obtained executed and delivered to the Buyer the Escrow Agreement.
(j) The Buyer shall have received the executed Employment Agreements.
(k) The Buyer shall have received the executed Non-Competition Agreement.
(l) The Buyer shall have received the resignation of all of the waivers, permits, consents, approvals or other authorizations, and effected all members of the registrations, filings board of directors of the Company and notices, the Subsidiary effective as may of the Closing Date.
(m) All proceedings to be required taken by or with respect to Sellers and the Company in connection with the transactions contemplated by this Agreementhereby and all documents incident thereto shall be satisfactory in form and substance to the Buyer and its counsel, includingand the Buyer 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.
(n) The Buyer shall have received written evidence, without limitationin form and substance satisfactory to it, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) termination or subordination, concurrent with the representations and warranties Closing, of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of those liens that encumber any of the transactions contemplated by this Agreementassets or other properties of the Company or the Subsidiary in favor of Atlas Copco.
(o) The Buyer shall have received written evidence, (ii) cause any in form and substance satisfactory to the Buyer, of the consent to the transactions contemplated by this Agreement of all governmental, quasi-governmental and private third parties (including, without limitation, persons or other entities leasing real or personal property to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company), and no except where the failure to have obtained any such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall consent would not have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) an adverse effect on the Company shall have delivered a certificate, executed by following the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this AgreementClosing.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (Neff Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver in writing by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Company set forth in Clause SECOND and Clause THIRD hereof herein shall be have been true and correctcorrect in all material respects (other than those that are qualified as to materiality, which shall have been true and correct in all respects) when made and as of the Closing Date, except (i) for changes permitted by this Agreement in accordance with Section 5.27, and (ii) for those representations and warranties that address matters only as of a specific date and those specific representations and warranties shall have been true and correct as of such specific date;
(b) the Company shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement, and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe “Company Certificate”) signed by a duly authorized officer of the Company to the effect that each of the conditions specified in clauses (a), (b), ) through (c)) (insofar as clause (c) related to an action, suit or proceeding involving, or a judgment, order, decree, stipulation or injunction against, the Company) of this Section 6.1 have been satisfied;
(e) the applicable waiting period (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated;
(f) the Company:
(i) shall have obtained (or caused to be obtained) all of the Company Third Party Consents set forth on Schedule 6.1(f)(i) to the Company Disclosure Letter;
(ii) shall have divided or otherwise dealt with on a Cost Neutral Basis, in a manner reasonably acceptable to the Buyer but in any case pursuant to the terms of Section 2.8, the Dividable Contracts set forth on Schedule 6.1(f)(ii) to the Company Disclosure Letter;
(iii) shall have received all of the federal, state and local governmental approvals which are required to be obtained by the Company to consummate the transactions contemplated by this Agreement;
(iv) shall have delivered (A) UCC search reports to the Buyer disclosing no liens or encumbrances against the Acquired Assets, other than Permitted Liens, and (dB) releases on any liens or encumbrances on the Intellectual Property (other than Permitted Liens), of this Clause 5.1 has been satisfied ;
(v) shall have obtained and delivered to the Buyer the Heinz IP Consent duly executed by Heinz and in all respectsa form reasonably acceptable to the Buyer; and
(lvi) shall have recorded the Del Monte Industrial Use Covenant with the Recorder’s Office for Allegheny County.
(g) the Stockholder Buyer shall have received such other customary certificates (such as a certificate of corporate good standing of the Company in the State of Delaware and certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(h) the Buyer shall have received the following:
(i) commitments for title insurance issued by a national title insurance company reasonably acceptable to Buyer (“Title Commitments”) committing to insure Buyer’s title in the Owned Real Property and its leasehold interests in (A) the Leased Real Property leased by the Company from the Urban Redevelopment Authority of Pittsburgh, (B) the Leased Real Property leased by the Company from Progress Street Partners, Ltd., (C) the R&D Equipment Room Lease, and (D) the Mendota Lease Agreement, in an aggregate amount equal to the portion of the Purchase Price allocated to the Owned Real Property and the applicable Leased Real Property that is acceptable to such national title insurance company, subject only to applicable Permitted Liens, which Title Commitments shall be for ALTA Form 1992 Owner’s Policies containing extended coverage with parking, location, access contiguity, fairway, tax parcel, and in the case of a leasehold policy, leasehold endorsements in customary Pennsylvania form, and shall be converted to title insurance policies by mxxx up on the Closing Date with the actual policies to be delivered as soon as practicable after the Closing;
(ii) valid surveys of the Owned Real Property referred to in subsection (i) above certified by licensed surveyors conforming to ALTA standards and disclosing the location of all improvements, easements, party walls, sidewalks, roadways, utility lines and access to public streets and roads (the “Surveys”), which Surveys shall, subject in all instances to the Pittsburgh Facility Subdivision and except as otherwise existing on the Owned Real Property prior to the Closing, disclose the location of the improvements thereon to be within the lot lines, the location of the buildings to be substantially within all building and setback lines, no encroachments of buildings or other improvements from adjoining properties or other survey defects other than Permitted Liens and which shall be sufficient to permit the title insurance company to omit the standard survey exceptions from the title insurance policies and issue a same as survey endorsement in customary Pennsylvania form;
(iii) a special warranty deed from the Company in customary Pennsylvania form with respect to the conveyance of the Owned Real Property from the Company to the Buyer (the “Deed”); and
(iv) evidence of the recording of an instrument confirming the transfer of title to the real property identified as Parcel III on Schedule 2.2(a)(iv) to the Company Disclosure Letter from H.X. Xxxxx Company or any successor thereto to the Company.
(i) the Company shall have delivered the 2004 and 2005 S-X Business Financials to the Buyer in accordance with Section 5.32;
(j) the Company shall have delivered all certificates, instruments, contracts and other documents to be delivered by it pursuant to Section 7.2(d) (including all applicable Collateral Agreements); and
(k) no event or circumstance which would reasonably be expected to have a certificate Material Adverse Effect shall have occurred. Pursuant to Section 4.3, the Buyer has made its representations regarding financing the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained elsewhere herein, the parties acknowledge and agree that establishes it shall not be a condition to the share distribution obligations of the Company, and indicating Buyer under this Agreement that no other person other than the Stockholder owns or Buyer has any right upon sufficient funds for the Sharespayment of the Purchase Price.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, satisfaction or waiver by the Buyer, Buyer of the following conditions on or prior to the Closingconditions:
(a) the Company sale of the Acquired Assets by the Sellers to the Buyer as a good faith purchaser for value within the meaning of Section 363(m) of the Bankruptcy Code and free and clear of all liens, claims, encumbrances and interests as contemplated by this Agreement shall have been approved by the Bankruptcy Court pursuant to the Approval Order which, as of the Closing Date, shall be in full force and effect, and not stayed, modified, vacated, amended or revoked;
(b) the assumption and assignment by the Sellers of the Assigned Contracts and Leases to the Buyer shall have been authorized and approved by an order of the Bankruptcy Court and such order is in full force and effect without any modification or amendment, as of the Closing Date;
(c) the Sellers or the Subsidiaries, as the case may be, shall have obtained all of the waivers, permits, consents, approvals or other authorizationsauthorization from Governmental Entities that are required to consummate the transactions contemplated hereby and operate the Facilities, except to the extent the failure to obtain such waivers, permits, consents, approvals or other authorization does not have any material effect on the ability of the Buyer to operate the Facilities, individually or taken as a whole;
(d) the Sellers and effected the Subsidiaries shall have obtained all of the registrationswaivers, filings and noticespermits, as may be consents, approvals or other authorization from any third parties (other than Governmental Entities ) that are required by or with respect to the Company in connection with consummate the transactions contemplated by this Agreementhereby and operate the Facilities, including, without limitation, those referred to any consents necessary in CLAUSE 2.30 connection with the assignment or deemed assignment of any of the Disclosure ScheduleLeases, the Intellectual Property or the Permits, except to the extent the failure to obtain such waivers, permits, consents, approvals or other authorization does not have any material effect on the ability of the Buyer to operate the Facilities, individually or taken as a whole;
(be) all of the representations and warranties of the Stockholder Sellers and the Subsidiaries set forth in Clause SECOND and Clause THIRD Article II hereof as qualified by the Schedules (without giving effect to any revisions, modifications or updates pursuant to Section 4.12 hereof), shall be true and correctcorrect in all material respects as of the date hereof and as of the Closing as if made as of the Closing (other than those representations and warranties which are qualified as to materiality, which shall be true and correct in accordance with their terms) regardless of any examination or investigation made at any time by or on behalf of the Buyer or the actual knowledge of any of the Buyer's officers, directors, employees or agents at the time of the Buyer's execution of this Agreement, except to the extent any of such representations and warranties are made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of the specified date;
(cf) the Sellers and the Subsidiaries shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(1) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity Entity, court or arbitrator wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this AgreementAgreement (except for the Bankruptcy Case, the Provision Motion and the Approval Motion), (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) materially and adversely affect adversely the right of the Buyer to own, operate or control any of the assets or operations of Acquired Assets following the CompanyClosing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
; (d2) there shall be no motions pending to convert or dismiss the Stockholder shall have delivered Chapter 11 Cases or to appoint a trustee for the Buyer the stock certificates representing the Shares, in each case duly endorsed Sellers or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company any Subsidiary; and (ii3) the resolutions of the Board of Directors of the Company required to authorize this Agreementthere shall be no injunctions or insolvency proceedings involving any foreign Subsidiary.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered Sellers and the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Subsidiaries shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (ad), (b), (c), e) and (d), f) of this Clause Section 5.1 has been is satisfied in all respects;
(i) since the Filing Date, except for the commencement of the Chapter 11 Cases, there shall have been no Material Adverse Effect, and no event or development has occurred which would reasonably be foreseen to result in a Material Adverse Effect;
(j) since the Filing Date, except for the commencement of the Chapter 11 Cases, there shall have been no change or effect relating to the Acquired Assets, individually or taken as a whole, that is or is reasonably likely to be material and adverse to the ability of the Buyer to own, operate or control the Acquired Assets following the Closing;
(k) the Sellers shall have provided to the Buyer the legal opinions of counsel set forth on Schedule 5.1(k);
(l) (A) no customer of the Sellers that is listed on Schedule 5.1(l) attached hereto shall have terminated its relationship with the Sellers or any agreement relating thereto or given notice of its intent to do so, and (B) no such customer shall have merged with or into or been acquired by another entity or otherwise been subject to a change of control (or announced its intention or entered into an agreement to do any of the same) if such other entity uses (1) Jabil Circuit Inc., (2) Solectron Corp., (3) SCI Systems Inc., (4) Celestica Inc. or (5) Sanmina Corp. as its primary contract manufacturer;
(m) no more than ten (10) individuals listed on Schedule 4.13 attached hereto shall have terminated his or her employment with the Sellers or given notice of his or her intent to do so; and
(ln) the Stockholder Sellers shall have delivered to achieved (1) if the Buyer Closing occurs on or before October 31, 2001, aggregate revenue for the months ending August 31, 2001 and September 30, 2001 of at least $28.5 million, (2) if the Closing occurs during November, 2001, aggregate revenue for the months ending August 31, 2001, September 30, 2001 and October 31, 2001 of at least $41 million and (3) if the Closing occurs during December, 2001, aggregate revenue for the months ending August 31, 2001, September 30, 2001, October 31, 2001 and November 30, 2001 of at least $55 million. All revenue calculations shall be made in accordance with U.S. GAAP applied on a certificate that establishes the share distribution consistent basis with past practices of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSellers.
Appears in 1 contract
Conditions to Obligations of the Buyer. (i) The obligation Sellers shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing Date, (ii) the representations and warranties of the Sellers contained in this Agreement qualified as to materiality or Material Adverse Effect (and the representations and warranties contained in Section 3.3 (Shares and Capital Stock)) shall be true and correct in all respects and the other representations and warranties of the Sellers contained in this Agreement not so qualified shall be true in all material respects, in each case at and as of the date hereof and at and as of the Closing Date, as if made at and as of such time (except to the extent in either case that such representations or warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such date), and (iii) the Buyer shall have received a certificate signed by the President or a Vice President of each of the Sellers certifying as to -------------------------------------- consummate compliance with clauses (i) and (ii) above.
(b) Since the date hereof, there shall not have occurred and be continuing:
(i) any general suspension of trading in, or limitation on prices for securities on the New York Stock Exchange;
(ii) a declaration of a banking moratorium or any suspension of payment in respect of banks in the United States or Venezuela, whether mandatory or not mandatory; or
(iii) commencement of a war, armed hostilities, coup d’etat, collapse of the government or other national or international crisis involving Venezuela or acts of terrorism, in any case which materially disrupts the normal operations of the Company.
(c) Since December 31, 2005, there shall have occurred no Material Adverse Effect with respect to the Company.
(d) Since December 31, 2004: (A) the Company shall have filed all reports required to be filed by it pursuant to the Exchange Act and the rules and regulations of the CNV, as applicable, and (B) the Company’s filings with the SEC and the CNV shall not have contained at the time of their respective filing (or if any filing has been amended prior to the date hereof, at the time of such amended filing) untrue statements of material facts and shall not have omitted to state material facts required to be stated therein in order to make the statements therein, in light of the circumstances in which they were made, not misleading.
(e) When filed, the financial statements of the Company and its Subsidiaries included in the SEC Filings and the CNV Filings made on or after December 31, 2004: (i) shall have complied in all material respects with applicable accounting requirements and with the applicable published rules and regulations of the SEC or CNV with respect thereto, and (ii) shall fairly present in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Company and its Subsidiaries at the date and for the period or periods covered thereby.
(f) The Company and its Subsidiaries shall not have, at any time after the date of this Agreement and prior to the Closing Date, adopted or undertaken any material action or actions intended to obstruct (or that has had, or is reasonably likely to have, the effect of obstructing) the transactions contemplated by this Agreement or the Offers in any material respects, or reasonably likely to have a material adverse effect on the Company and its Subsidiaries taken as a whole, including the following:
(i) adjusted, split, combined, recapitalized or reclassified its capital stock or ownership interests or any class thereof;
(ii) proposed (which proposal is subject made by the Company’s Board of Directors for approval by the stockholders with a dividend record date prior to the satisfactionproposed settlement date for the Offers), obtained shareholder approval of, or waiver paid, any dividend or distribution on any shares of its capital stock, ownership interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or ownership interests, other than cash dividends proposed by the Board of Directors of the Company on February 23, 2006;
(iii) redeemed, purchased or otherwise acquired, directly or indirectly (including, without limitation, through labor related trusts or other trusts or entities controlled or funded by the Company), any shares of its capital stock, ownership interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or ownership interests, other than redemptions, purchases or acquisitions of Company Shares for no more than the then market value thereof to meet the Company’s obligations under employee stock option plans and other existing employee stock compensation plans, awards or agreements in an amount which in the aggregate does not exceed three percent (3%) of the Company Shares (including Company Shares underlying the ADSs) issued and outstanding as of the date hereof;
(iv) granted any Person(s) any right or option to acquire any shares of its capital stock or ownership interests, except for rights and options exercisable for a number of shares or ownership interests of the Company in an amount which in the aggregate and on a fully-diluted basis, when taken together with any other issuances of its capital stock, ownership interest or any securities instruments or obligations convertible into or exchangeable or exercisable for any shares of its capital stock, ownership interests or such securities, does not exceed three percent (3%) of the Company Shares (including Company Shares underlying the ADSs) issued and outstanding as of the date hereof (it being agreed that all Company Shares currently held in the trust for Excellence Award program shall be deemed not granted as of the date hereof);
(v) altered or proposed to alter any material term of any outstanding security, including employee stock options;
(vi) issued, delivered or sold or agreed to issue, deliver or sell any additional shares of its capital stock, ownership interests or any securities, instruments or obligations convertible into or exchangeable or exercisable for any shares of its capital stock, ownership interests or such securities, except for shares of capital stock, ownership interests, exchangeable or convertible securities, instruments or obligations in an amount that in the aggregate and on a fully-diluted basis, when taken together with grants of any right or option to acquire any shares of its capital stock or ownership interests, does not exceed three percent (3%) of the Company Shares (including Company Shares underlying the ADSs) issued and outstanding as of the date hereof;
(vii) sold, transferred, leased, pledged, mortgaged, encumbered or otherwise disposed of any amount of its property or assets that is material to the Company and its Subsidiaries, taken as a whole, other than in the ordinary course of business;
(viii) made any material changes to the estatutos of the Company;
(ix) incurred or committed to incur any material debt or guarantee the material obligations of third parties (other than its Subsidiaries) other than in the ordinary course of business;
(x) recommended on a Schedule 14d-9 (or similar form under applicable Law), authorized or entered into (A) any merger, consolidation, business combination, material joint venture, material strategic alliance or similar arrangement with any Person (other than the Buyer, either of the following conditions on Buyer Parents or prior any of their respective Affiliates in furtherance of the transactions contemplated hereby), or (B) a liquidation or dissolution of the Company or any of its material Subsidiaries;
(xi) authorized or entered into any agreement or arrangement for the acquisition of a material amount of assets or securities, or any waiver, release or relinquishment of any material contract or comparable rights of the Company and its Subsidiaries, taken as a whole, or any agreement contemplating any of the foregoing or any comparable event, in each case other than in the ordinary course of business or in exchange for reasonably equivalent value;
(xii) taken or funded (or transferred into escrow any amounts in cash, securities or other assets required to fund), entered into, amended, terminated, or increased benefits under, any employment, severance, employee benefit or similar agreement, arrangement or plan (other than in the ordinary course of business) in each case to provide for increased benefits to the Closing:
(a) the Company shall have obtained all employees as a result of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Agreement or the Offers or any other change of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, which in the aggregate result in a material increase in the obligations of the Company and no its Subsidiaries, taken as a whole, to their respective employees as compared to their obligations to employees as of the date hereof;
(xiii) reduced its paid-in capital; or
(xiv) agreed in writing or called a shareholders’ meeting to take any of the foregoing actions, but only if (a) with respect to any action agreed to in writing, such judgmentaction has not been cancelled or revoked, and (b) with respect to a shareholders’ meeting, (1) the resolution calling such meeting has not been cancelled or revoked, or (2) the meeting having taken place, the action has been approved by the shareholders.
(g) There shall not be pending any action, proceeding, application or claim by any Person(s) in connection with the transactions contemplated hereby which seeks to obtain any damages from the Buyer, the Company or their respective Affiliates, which damages are, in the aggregate, material in respect of the size of the Company and its Subsidiaries, and such action, proceeding, application or claim is reasonably likely to succeed.
(h) No statute, rule, regulation, order, decreejudgment, stipulation decree or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Sharesfrom any Governmental Authority has been enacted, in each case duly endorsed promulgated, entered, enforced or with duly executed stock powers attached;
(e) the Company shall have delivered a certificatebecome applicable which expropriates, executed by the Secretary nationalizes, confiscates or otherwise takes possession or control of the Company, attaching and certifying as to: the Company’s business or operations or any material portion of the Company’s assets (or seeks to do any of the foregoing).
(i) The Company and its Subsidiaries shall hold all wireline and wireless concessions issued by the charter documents appropriate Governmental Authority that are required for the conduct of their respective wireline and wireless businesses, and for the operation and holding of their wireline and wireless assets (estatutos sociales) together with any renewals, extensions or modifications thereof and any additions thereto made as of the Company Closing Date). Each such concession shall have been duly issued and shall be valid and in full force and effect, and no proceeding seeking the suspension or cancellation of any such concession shall have been commenced by a Governmental Authority and shall be continuing.
(iij) Each of the resolutions directors and officers of Holdings shall have been removed or shall have resigned effective as of the Closing Date and each of the employees of any Affiliate of the Sellers who are members of the Board of Directors of the Company required to authorize this Agreement.
(fincluding both directors and alternates (suplentes)) shall have irrevocably tendered their resignations to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationCompany, as to provided for in Section 5.5, it being understood that this Section 7.3(j) does not require the due qualification (including tax) resignation of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as Chairman of the Closing Date;
(h) the Company shall have delivered the original corporate minute books Board of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;.
(k) This Agreement and the Stockholder transactions contemplated hereby shall have delivered not conflict with or result in the violation of, or constitute (with due notice or lapse of time or both) a default under, or give rise to a right of termination, cancellation or acceleration of any obligation under any contract or agreement to which the Buyer Company is a certificate party or any of its properties or assets is bound, except (in each case without regard to i) any qualification as to knowledge contract or materiality agreement set forth in any representation Schedule 7.3(k) with Sellers’ Parent or warrantyits Affiliates or (ii) to such conflicts, violations, defaults or rights that would not have, individually or in the aggregate, a material adverse effect that each on the business or operations of the conditions specified in clauses (a), (b), (c), Company and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer its Subsidiaries taken as a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shareswhole.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions to be consummated at the Closing is subject to the satisfaction (or waiver by the Buyer) of the following conditions:
(a) the representations and warranties of the Sellers set forth in Article II shall be true and correct when made and as of the Closing Date as if made as of the Closing Date, except (i) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to clause (ii) below) and (ii) where the failure of the representations and warranties to be true and correct would not reasonably be expected, individually or in the aggregate, to result in a Business Material Adverse Effect (it being agreed that all materiality or Business Material Adverse Effect qualifications in the representations and warranties shall be disregarded in determining whether any such failure would reasonably be expected to result in a Business Material Adverse Effect for purposes of this clause (ii));
(b) each Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) (i) no provision of any Applicable Law shall prohibit consummation of the transactions contemplated by this Agreement is or subject to the satisfaction, or waiver by the Buyer, solely by reason of the following conditions on or prior to the Closing:
(a) the Company shall have obtained all consummation of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, includingto any penalty or other condition that would reasonably be expected to have a Business Material Adverse Effect, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(cii) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and (iii) no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder Parent shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedParent Certificate;
(e) all applicable waiting periods (and any extensions thereof) under the Company shall have delivered a certificate, executed by Hxxx-Xxxxx-Xxxxxx Act (if any) and the Secretary applicable foreign antitrust or trade regulation laws of the Company, attaching and certifying as to: (i) the charter documents (estatutos socialescountries identified in Section 5.1(e) of the Company Disclosure Schedule shall have expired or otherwise been terminated, and (iiall approvals of any Governmental Entity identified in Section 5.1(e) the resolutions of the Board of Directors of the Company required Disclosure Schedule with respect to authorize this Agreement.any such laws shall have been obtained;
(f) to the extent reasonably available all Third Party Consents listed in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including taxSection 5.1(f) of the Company Disclosure Schedule shall have been obtained or Stockholder, as the case may be, effected and shall remain in each such jurisdictionfull force and effect;
(g) the Buyer United States Government shall have received from Mexican counsel (i) completed its national security review and, if necessary, investigation, under Exon-Fxxxxx and (ii) concluded that no action to suspend or prohibit the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Datetransactions contemplated hereby is warranted;
(h) the Company shall have delivered the original corporate minute books of the Company[Intentionally omitted];
(i) the signatories to each Buyer shall have obtained all necessary Taiwanese governmental approvals identified in Section 5.1(i) of the bank accounts Disclosure Schedule, with respect to the consummation of the Company shall have been changed as per the Buyer's instructionstransactions contemplated by this Agreement;
(j) all Legal Permits required to carry on the Buyer or its designee Business as now conducted shall have entered into an Employee Agreement been transferred to or otherwise obtained by Buyer on or before the Closing Date, with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxonly such exceptions as would not reasonably be expected, individually or in the aggregate, to have a Business Material Adverse Effect;
(k) the Stockholder Buyer shall have delivered received such other customary certificates (such as certificates of good standing of the Sellers in their jurisdictions of incorporation and certificates as to the Buyer a certificate incumbency of officers, the adoption of authorizing resolutions and the due execution and delivery of this Agreement and the Ancillary Agreements) as it shall reasonably request in connection with the Closing;
(in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyl) to the effect that each all of the conditions specified New License Agreements shall have been executed and shall remain in clauses (a)full force and effect, (b), (c), and (d), conditioned only upon consummation of this Clause 5.1 has been satisfied in all respectsthe Closing; and
(lm) the Stockholder offers to the Employees as described in Section 5.1(m) of the Disclosure Schedule shall have delivered to been accepted and such acceptances shall remain in full force and effect, and the Employees accepting such offers (or whose employment is otherwise transferred) shall not have given notice of any termination of their employment (or, in the case of EU Business Employees, such EU Business Employees shall remain employees of the applicable Seller and shall not have provided written notice under Applicable Law such that he or she shall not remain an employee of the Buyer a certificate that establishes (or any of its Affiliates) after the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing).
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to occur at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) i. the Company Seller shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleSection 4(b);
(b) ii. the representations and warranties of the Stockholder and the Seller set forth in Clause SECOND and Clause THIRD hereof Section 2 shall be true and correct;
(c) no action, suit or proceeding correct when made on the date hereof and shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, true and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated correct as of the Closing Dateas if made as of such Closing, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(h) iii. the Company Seller shall have delivered performed or complied with their agreements and covenants required to be performed or complied with under this Agreement as of or prior to the original corporate minute books of the CompanyClosing;
(i) iv. the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each the conditions specified in Section 5(a) and clauses (i) through (iii) of this Section 5(b) are satisfied in all respects;
v. the Buyer shall have received from counsel to the Seller an opinion with respect to the matters set forth in Exhibit C attached hereto, addressed to the Buyer and dated as of the Closing Date;
vi. all actions to be taken by the Seller in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer;
vii. the Buyer shall have received at or prior to the Closing such documents, instruments or certificates as the Buyer may reasonably request including, without limitation:
a. a bill of sale substantially in the form of Exhibit E;
b. such instruments of conveyance, assignment and transfer, in form and substance satisfactory to the Buyer, as shall be appropriate to convey, transfer and assign to, and to vest in, the Buyer, good, clear, record and marketable title to the Assets other than the Real Property (including all necessary bills of sale and certificates of title for motor vehicles owned by the Seller);
c. such warranty deeds and instruments of conveyance, assignment and transfer, in form and substance satisfactory to the Buyer, as shall be appropriate to convey, transfer and assign to, and to vest in, the Buyer, good, clear, record, marketable and insurable title to the Real Property;
d. all literature and other documentation relating to the Seller's business, all in form and substance satisfactory to the Buyer;
e. such contracts, files and other data and documents pertaining to the Assets or the Seller's business as the Buyer may reasonably request;
f. [intentionally deleted]
g. such certificates of the Seller's officers and such other documents evidencing satisfaction of the conditions specified in clauses Section 5(b) as the Buyer shall reasonably request;
h. certificates of the Secretary of State of the State of New York as to the legal existence and good standing (a)including tax) of the Seller in their respective states of incorporation;
i. certificates of the Secretary of the Seller attesting to the incumbency of the Seller's officers, (b), (c)the authenticity of the resolutions authorizing the transactions contemplated by the Agreement, and (d), the authenticity and continuing validity of this Clause 5.1 has been satisfied in all respects; andthe charter documents delivered pursuant to Section 2;
(l) j. estoppel certificates from each lessor from whom the Stockholder shall have delivered Seller leases real or personal property consenting to the assumption of such lease by the Buyer and representing that there are no outstanding claims against the Seller under any such lease;
k. estoppel certificates from each tenant to whom the Seller leases real property consenting to the assumption of such lease by the Buyer and representing that there are no outstanding claims against the Seller under any such lease;
l. a certificate that establishes cross receipt executed by the share distribution of Buyer and the CompanySeller;
m. such other documents, and indicating that no other person other than instruments or certificates as the Stockholder owns or has any right upon the SharesBuyer may reasonably request.
Appears in 1 contract
Samples: Asset Purchase Agreement (Casella Waste Systems Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is Transaction will be subject to the satisfaction, fulfillment (or waiver by the Buyer, of the following conditions ) on or prior to the ClosingClosing Date of the following additional conditions:
(a) The representations and warranties of the Company Seller contained in Article Three shall be true and correct on and as of the Effective Date and shall be true and correct in all material respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date, except as affected by the Transaction. The Seller shall have obtained duly performed and complied in all of the waivers, permits, consents, approvals or other authorizations, material respects with all agreements and effected all of the registrations, filings and notices, as may be conditions required by this Agreement to be performed or complied with respect by it prior to or on the Closing Date. The Seller will have delivered to the Buyer a Seller Closing Certificate, dated the Closing Date, to the effect set forth above in this Section 8.2(a).
(b) All company and other proceedings of the Company in connection with the transactions Transaction contemplated by this Agreement, includingand all documents and instruments incident thereto, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true reasonably satisfactory in substance and correct;form to the Buyer, and the Buyer shall have received all such documents and instruments, or copies thereof, certified if requested, in respect of such company and other proceedings as may be reasonably requested by the Buyer.
(c) All Consents, if any, of any Governmental Authority or any other Person that are required in connection with the Transaction shall have been duly obtained and shall be effective on and as of the Closing Date. No stop order enjoining the consummation of the Transaction shall have been issued and no action, suit or proceeding proceedings for such purpose shall be pending or or, to the Knowledge of the Seller and the Buyer, threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any Authority. At the time of the transactions contemplated by this AgreementClosing, (ii) cause any the sale of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered Seller Interest to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed be legally permitted by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required all Laws to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) Seller and the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1are subject. g) heretoMoreover, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company no Litigation shall have been changed as per instituted or threatened before any Governmental Authority that challenges the Buyer's instructions;
(j) the Buyer validity or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each legality of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesTransaction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Circle Star Energy Corp.)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions purchase of the Assets contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) A Material Adverse Effect shall not have occurred and be continuing;
(b) The Seller 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 the Seller on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizationsClosing Date, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller which are set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct in all material respects as of the transactions contemplated by date of this Agreement, (ii) cause any Agreement and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, Closing Date as though made at and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) There shall be no Encumbrances on the Company Assets by virtue of the Indentures;
(d) The Buyer shall have delivered the original corporate minute books received certificates from authorized officers of the CompanySeller, dated the Closing Date, to the effect that, to the best of such officer's knowledge, the conditions set forth in Sections 8.2(a), (b) and (c) have been satisfied;
(e) The Buyer shall have received an opinion from counsel to the Seller, dated the Closing Date and satisfactory in form and substance to the Buyer, substantially to the effect that:
(1) The Seller is a corporation organized, existing and in good standing under the laws of the Commonwealth of Massachusetts and the Seller has the corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the sale of the Assets contemplated hereby have been duly authorized by all requisite corporate action taken on the part of the Seller;
(2) The Affiliates of Seller party to the Related Agreements are corporations organized, existing and in good standing under the laws of the Commonwealth of Massachusetts with the requisite corporate power and authority to execute the Related Agreements to which they are a party and to consummate the transactions contemplated thereby; the execution and delivery of the Related Agreements to which each is a party and the consummation of the transactions contemplated thereby have been duly authorized by all requisite corporate action on the part thereof; and the Related Agreements have been executed and delivered by each thereof.
(3) This Agreement and the Related Agreements have been executed and delivered by the Seller and (assuming that the Seller Required Regulatory Approvals and the Buyer Required Regulatory Approvals are obtained) this Agreement and the Related Agreements are valid and binding obligations of the Seller or the appropriate Affiliate of Seller, as the case may be, enforceable against them in accordance with their terms, except (A) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceeding therefore may be brought;
(4) The execution, delivery and performance of this Agreement and the Related Agreements by the Seller and the appropriate Affiliate of the Seller will not constitute a violation of the Articles of Organization or Bylaws, as currently in effect, of the Seller or such Affiliate;
(5) The Xxxx of Sale, the Deed and the other documents described in Section 4.3 are in proper form to transfer to the Buyer title to the Assets; and
(6) No declaration, filing or registration with, or notice to, or authorization, consent or approval of any governmental authority is necessary for the consummation by the Seller of the Closing other than (i) the signatories to each Seller Required Regulatory Approvals, all of the bank accounts of the Company such Seller Required Regulatory Approvals having been obtained and being in full force and effect with such terms and conditions as shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to imposed by any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c)applicable governmental authority, and (d)ii) such declarations, filings, registrations, notices, authorizations, consents or approvals which, if not obtained or made, would not, in the aggregate have a Material Adverse Effect. As to any matter contained in such opinion which involves the laws of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person any jurisdiction other than the Stockholder owns Federal laws of the United States or has any right the laws of the Commonwealth of Massachusetts, such counsel may rely upon opinions of counsel admitted in such other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall be delivered together with the Sharesopinion of such counsel. Such opinion may expressly rely as to matters of fact upon certificates furnished by the Seller and appropriate officers and directors of the Seller and by public officials.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be referred to in Section 4.2 which are required by on the part of the Seller, except for any failure of which to obtain or with respect effect would not, individually or in the aggregate, have a material adverse effect on the right of the Buyer to own, operate or control the Company in connection with Acquired Assets following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect as of the date of this Agreement and shall be true and correct as of the Closing as though made as of the Closing, except to the extent that the inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a material adverse effect on the right of the Buyer to own, operate or control the Acquired Assets following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(c) the Seller shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations of to conduct the CompanyAcquired Business as currently conducted by the Seller, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing Seller Certificate, the SharesSeller’s Secretary Certificate, in each case duly endorsed or with duly executed stock powers attachedand the Ancillary Agreements;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer an update of each list contained in the Company Schedules hereto that lists or Stockholder, as the case may be, in each such jurisdictiondescribes Acquired Assets;
(g) the Buyer shall have received from Mexican counsel to such other certificates, instruments and evidence (including certificates of good standing of the Stockholder an opinion Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. g) hereto, dated as of connection with the Closing Date;Closing; and
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to Buyer the Acquired Assets, the Ancillary Agreements and such other good and sufficient instruments of transfer and conveyance, in form and substance reasonably satisfactory to Buyer a certificate (and its counsel, as shall be effective to vest in each case without regard Buyer, and to any qualification as to knowledge or materiality set forth evidence the vesting in any representation or warranty) Buyer of, good and marketable title to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesAcquired Assets as provided for herein.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Sections 2.2 and 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable threatened; and no judgment, order, decree, stipulation or injunction shall be in effect that would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, and no such judgment, order, decree, stipulation or injunction shall be in effectfollowing the Closing;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates to the Buyer an updated list of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationAcquired Assets, as of the day prior to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionClosing Date;
(g) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets other than those associated with the Assumed Liabilities, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing such Security Interests;
(h) the Buyer shall have received an opinion from Mexican counsel to the Stockholder an opinion Seller in substantially the form attached hereto as Exhibit E, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions[RESERVED];
(j) the Buyer or its designee a successor entity thereto shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxreceived aggregate gross proceeds of at least $4.0 million from the sale of its securities;
(k) the Stockholder no Seller Material Adverse Effect shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; andoccurred;
(l) the Stockholder Buyer shall be reasonably satisfied that the issuance and sale of the Shares are exempt from the registration requirements of the Securities Act;
(m) the Seller shall have delivered received all necessary consents to the assignment of the Assigned Contracts, which consent may be conditioned on the Closing;
(n) the Buyer a certificate that establishes and its attorneys, accountants, lenders and other representatives and agents shall have satisfactorily completed their due diligence investigation of the Seller and the Business;
(o) the Buyer shall have received such other certificates and instruments (including certificates of good standing of the Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(p) [RESERVED];
(q) the Buyer, Strategic and the members of Strategic shall have entered into the Strategic Purchase Agreement;
(r) the Members shall have signed such share exchange agreements and other documents as the Buyer may reasonably request in connection with the share distribution exchange transaction currently contemplated by the Buyer;
(s) Each of Richard C. Mills and Stella Kathexxxx Xxxxx xxxxl havx xxxxrex xxxx xx xxxxxxent with Buyer for the Companytransfer of their personal goodwill to the Buyer; and
(t) Buyer shall have determined in its sole discretion that any modifications, and indicating that no other person other than changes or additions made by Seller to the Stockholder owns Disclosure Schedules subsequent to the execution of this Agreement do not individually or has any right upon in the Sharesaggregate have a Material Adverse Effect on the Assigned Contracts or the cash flows anticipated therefrom by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Suncrest Global Energy Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingprecedent:
(a) each Equity Holder, the Seller and the Company shall each have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by set forth on Schedule 7.1(a)(i) and all other waivers, permits, consents, approvals or with respect to other authorizations, and effected all of the Company in connection with registrations, filings and notices, which are necessary for the consummation of the transactions contemplated by this Agreement, including, without limitation, those referred Agreement or are material to in CLAUSE 2.30 the conduct of the Disclosure Schedulebusiness of the Company and the Subsidiaries, it being agreed that none of the waivers, permits, consents, approvals, authorizations, registrations, filings and notices set forth on Schedule 7.1(a)(ii) shall be a condition to the Closing;
(b) the representations and warranties of the Stockholder Equity Holders, the Seller and the Company set forth in Clause SECOND Sections 2.1, 2.2, 2.3, 3.1, 3.2, 4.1 and Clause THIRD hereof 4.2 of this Agreement shall be true and correctcorrect in all respects as of the date of this Agreement and shall be true and correct in all respects as of the Closing as though made as of the Closing and all other representations and warranties of the Equity Holders, the Seller and the Company set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing as though made as of the Closing;
(c) each of the Equity Holders, the Seller and the Company shall have performed or complied in all material respects with each of its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) there shall have occurred no actionchange, suit event, circumstance or proceeding development which, individually or taken together with all other changes, events, circumstances or developments, has had, or could reasonably be expected in the future to have, a Company Material Adverse Effect;
(e) no Legal Proceeding shall be pending or threatened by or before any Governmental Entity in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction or (iii) affect adversely have, individually or in the right of the Buyer to ownaggregate, operate or control any of the assets or operations of the Companya Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(df) all applicable waiting periods (and any extensions thereof) under the Stockholder Xxxx-Xxxxx-Xxxxxx Act and under any other applicable U.S. or foreign antitrust laws shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed expired or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionotherwise been terminated;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) Seller and the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge knowledge, materiality or otherwise), signed by the Chief Executive Officer and Chief Financial Officer of each of the Seller and the Company, to the effect that each of the conditions specified in clauses (a) through (e) of Section 7.1 is satisfied in all respects with respect to the Seller, the Company and the Subsidiaries;
(h) each of the Equity Holders shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality set forth in any representation or warranty) otherwise), signed on behalf of each such Equity Holder by a duly authorized representative, to the effect that each of the conditions specified in clauses (a), (b), (c)) and, and with respect to Legal Proceeding involving such Equity Holder, (d), e) of this Clause 5.1 has been Section 7.1 is satisfied in all respects; andrespects with respect to such Equity Holder;
(i) the Buyer shall have received copies of the resignations, effective as of the Closing, of each director and officer of the Company and the Subsidiaries (other than any such resignations which the Buyer designates, by written notice to the Company, as unnecessary);
(j) the Buyer shall have received a counterpart of the Escrow Agreement executed by the Escrow Agent and the Seller;
(k) the Buyer shall have received from Xxxxxx Xxxxxxxx Xxxxx, counsel to the Seller and the Company, an opinion in the form attached hereto as Exhibit B addressed to the Buyer and dated as of the Closing Date;
(l) the Stockholder Buyer shall have received from the legal counsel to each of the Equity Holders that is an entity an opinion in the forms attached hereto as Exhibit C addressed to the Buyer and dated as of the Closing Date;
(m) the Buyer shall have received estoppel certificates from each lessor under each Lease consenting to the acquisition of the Company or a Subsidiary by the Buyer and the other transactions contemplated hereby, and representing that there are no outstanding claims against the Company or any Subsidiary under such Lease;
(n) the Employee Agreements entered into between the Buyer and each of Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx shall remain in full force and effect as of the Closing;
(o) the Buyer shall have received evidence that all benefits provided by the Company or any Subsidiary to any Equity Holder or any Affiliate thereof (other than (i) those benefits generally provided to all employees of the Company or any Subsidiary that are received in such Equity Holder’s or Affiliate’s capacity as an employee of the Company or any Subsidiary and (ii) those benefits permitted to be provided by the last sentence of Section 6.3), including health, dental, life insurance and tax preparation benefits, have been terminated;
(p) the Buyer shall have received evidence that the Company and the Subsidiaries have terminated, if and to the extent requested by the Buyer, the 401(k) Plan, effective prior to the Closing, on terms satisfactory to the Buyer;
(q) the Buyer shall have received certificates of good standing (or the substantial equivalent) of the Seller, the Company and the Subsidiaries in their jurisdictions of organization and the various foreign jurisdictions in which they are qualified; and
(r) the Seller and the Company shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesCompany Secretaries’ Certificate.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate carry out the transactions contemplated by this Agreement is subject are subject, at the option of the Buyer, to the satisfaction, or waiver by the Buyer, of the following conditions:
(a) All representations and warranties of Stockholders and the Company contained in this Agreement qualified by materiality shall be true and correct in all respects at Closing and all other representations and warranties of the Stockholders and the Company contained in this Agreement shall be true and correct in all material respects at and as of the Closing as if such representations and warranties were made at and as of the Closing, except for changes contemplated by the terms of this Agreement except as and to the extent that the facts and conditions on upon which such representations and warranties are based are expressly required or permitted to be changed by the terms thereof, and the Stockholders and the Company shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by Stockholders and the Company at or prior to the Closing; provided, however, that the Buyer shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform.
(b) As of the Closing Date, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of the Buyer) shall be pending or threatened before any court or governmental agency seeking to restrain the Buyer or prohibit the Closing or seeking Damages against the Buyer, the Company or its Properties as a result of the consummation of this Agreement.
(c) All notices required to be given in connection with the transactions contemplated by this Agreement shall have been duly and timely given, and there shall not be any preferential purchase rights or consent requirements with respect to the transactions contemplated by this Agreement that have not expired or been waived.
(d) Since the date of the Interim Balance Sheet and up to and including the Closing there shall not have been:
(ai) any change in the business, operations, prospects or financial condition of the Company that had or would reasonably be likely to have a material adverse effect on the business, operations, prospects, properties, securities or financial condition of the Company; and
(ii) any damage, destruction or loss to the Company (whether or not covered by insurance) that had or would reasonably be likely to have a material adverse effect on the business, operations, prospects, Properties, securities or financial condition of the Company.
(e) The Buyer shall have received the opinion of the law firm Basilico, Xxxxxxxxx Xxxxxx & Xxxxxx, counsel to the Company and the Stockholders, dated as of the Closing Date, in form and substance reasonably satisfactory to the Buyer, as to the matters set forth on EXHIBIT F. In rendering such opinion, Basilico, Fernandez, Xxxxxx & Xxxxxx may rely as to factual matters on certificates of officers, directors and shareholders of the Company and on certificates of governmental officials, and as to legal matters on opinions of other counsel reasonably acceptable to the Buyer.
(f) The Stockholders and the Company shall have obtained executed and delivered to the Buyer the Collateral Agreements to which it is a party.
(g) The Buyer shall have received the resignation of all of the waivers, permits, consents, approvals or other authorizations, and effected all members of the registrations, filings board of directors of the Company effective as of the Closing Date and notices, new members shall have been elected as may provided in the Stockholders' Agreement.
(h) All proceedings to be required taken by or with respect to the Stockholders and the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations hereby and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof all documents incident thereto shall be true satisfactory in form and correct;substance to the Buyer and its counsel, and the Buyer 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.
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any The Buyer shall have received written evidence, in form and substance satisfactory to the Buyer, of the transactions contemplated by this Agreement, (ii) cause any of consent to the transactions contemplated by this Agreement of all governmental, quasi-governmental and private third parties listed or required to be rescinded following consummation listed in Schedule 3.05 hereto (including, without limitation, persons or (iii) affect adversely the right of the Buyer other entities leasing real or personal property to own, operate or control any of the assets or operations of the Company, and no in particular of the following: Banco Rio de la Plata S.A., BankBoston, JLG Industries, Inc., Onan, Skytrack, Amida Industries, Inc., Sullair Corporation, European Gas Turbines Ltd. and Xxxxxxx and Xxxxxxxxx), except where the failure to have obtained any such judgment, order, decree, stipulation or injunction shall be in effect;consent would not have an adverse effect on the Company following the Closing.
(dj) the Stockholder The Buyer shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered performed a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) due diligence process of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdictionits Controlled Companies and shall be satisfied, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the at Buyer's instructions;
(j) sole and absolute discretion, with the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each results of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharessaid due diligence process.
Appears in 1 contract
Samples: Stock Purchase and Subscription Agreement (Neff Corp)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate close the transactions transaction contemplated by this Agreement is hereby shall be subject to the satisfaction, or waiver by the Buyer, of the following conditions on fulfillment at or prior to the ClosingClosing Date of the following conditions:
(a) the Company The Seller Parties shall have obtained performed or complied in all of the waivers, permits, consents, approvals material respects with their agreements and covenants contained in this Agreement required to be performed or other authorizations, and effected all of the registrations, filings and notices, as may be required by complied with at or with respect prior to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;Closing Date.
(b) the The representations and warranties of the Stockholder set forth Seller Parties contained in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no actioncorrect in all material respects, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any when made and on and as of the transactions Closing Date with the same force and effect as if made on and as of such date, except as expressly contemplated or otherwise expressly permitted by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(fc) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the The Buyer shall have received from Mexican the deliveries referred to in Section 3.2.
(d) The Buyer shall have received an opinion of Holland & Knight LLP, counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoSeller Parties ("Sellers' Counsel"), dated as of the Closing Date;Date and addressed to the Buyer, in a form reasonably satisfactory to the Buyer.
(e) The Buyer shall have received such consents, approvals and assurances set forth on Schedule 4.7 to ensure the effective continuation of all schedule-based contracts and the continuation of the prime contracts and subcontracts presented under such schedules.
(f) The Buyer shall have received the Professional Fees Certificate signed by the Shareholders' Representative on behalf of the Sellers.
(g) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or Governmental Authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the transactions contemplated hereby; provided, however, that the parties shall use commercially reasonable efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(h) All consents, approvals and waivers disclosed or required to be disclosed on Schedule 4.7 hereto shall have been received. Any notifications which do not require 42 consent, approval or waiver of the transactions contemplated hereby listed on Schedule 4.7 required to be given to any third party shall be given at Closing.
(i) There shall be no outstanding Options of the Company. Following the execution of this Agreement, the Company shall redeem or terminate each of the Options. In additions, the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to redeemed each of the bank accounts Mark Bachrach's shares of record of common stock in the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered and sxxxx xxxx xxxxxded to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each copies of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) duly executed documents effecting the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesforegoing transactions.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect at and as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to clause (iii)) and (iii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to have a Company Material Adverse Effect (it being agreed that this clause (iii) shall be inapplicable to any portion of a representation and warranty which already contains a Company Material Adverse Effect or other materiality qualification);
(b) the Seller shall have performed or complied with in all material respects the agreements and covenants required to be performed or complied with by them under this Agreement as of or prior to the Closing;
(c) no the Seller shall exercise the option to purchase stock of Call Data de Mexico and pay the Twenty Thousand dollars ($20,000) consideration for the purchase. All taxes attributable to the period prior to the Closing are to be paid by Call Data de Mexico. All obligations and liabilities related to the completion of the transaction and the operation of Call Data de Mexico after the Closing, including but not limited to compliance with Mexican law is a post-Closing obligation or liability of the Company;
(d) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified in clauses (a), (b) and (c) of this Section 5.1 is satisfied in all respects;
(e) No action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would reasonably be expected to (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or consummation, (iii) affect materially and adversely the right of the Buyer to own, operate own the Company Shares and to control the Company or control any (iv) affect materially and adversely the right of the Company or any Subsidiary to own its assets or operations of the Companyand to operate its businesses, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Vianet Technologies Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- effect the Closing and consummate the transactions contemplated by this Agreement is are subject to the satisfaction, satisfaction (or waiver by the Buyer, of the following conditions Buyer in its sole discretion) on or prior to the ClosingClosing Date of the following conditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND Article IV or in any Ancillary Document and Clause THIRD hereof in any certificate or other writing delivered pursuant hereto (i) that are qualified by materiality or material adverse effect shall be true and correct;
(c) no action, suit correct in all respects or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated that are not qualified by this Agreement to be rescinded following consummation materiality or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction material adverse effect shall be true and correct in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Sharesall material respects, in each case duly endorsed or at and as of the Effective Date and as of the Closing Date with duly executed stock powers attachedthe same effect as though made at and as of the Closing Date (except to the extent expressly made as of another date, in which case as of such date);
(eb) the Company Seller shall have delivered a certificateperformed or complied with, executed by the Secretary of the Companyin all material respects, attaching its covenants and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company agreements hereunder that are required to authorize this Agreement.
(f) be performed or complied with on or prior to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification executed as to knowledge or materiality set forth in any representation or warranty) of the Closing Date by an executive officer of the Seller to the effect that each the conditions set forth in Sections 9.1(a) and (b) are fully satisfied;
(d) there shall not be any judgment, order, decree, stipulation, injunction or charge issued by any court of competent jurisdiction or any other Governmental Entity in effect preventing consummation of the conditions specified in clauses transactions contemplated by this Agreement;
(a)e) the Seller shall, or shall have caused the discharge of (b), (c), and (dincluding filing of appropriate termination statements), of this Clause 5.1 has been satisfied in all respects; andLiens set forth on Schedule 9.1(e);
(lf) the Stockholder union party to the Newnan Union Contract shall have consented to the assumption of the Newnan Union Contract and shall have consented to the amendment of such Contract in a manner to enable Buyer to assume and discharge the obligations thereunder from and after the Closing, including replacement of retirement and welfare benefits as provided in Section 8.2 and the elimination of any requirement to provide an employee stock purchase plan to union employees;
(g) the Seller shall have delivered to the Buyer Buyer:
(i) a duly executed counterpart of a xxxx of sale and assignment and assumption agreement, with respect to certain assets and liabilities of the Seller, in substantially the form attached hereto as Exhibit B (the “Xxxx of Sale and Assignment and Assumption Agreement”); provided, however, that in connection with the assignment and assumption of the Real Property Leases, the Parties shall execute separate assignment and assumption documents (the “Lease Assignment and Assumption”) consistent with the terms of this Agreement and the Xxxx of Sale and Assignment and Assumption Agreement (as that document relates to the assignment of the Real Property Leases) if such separate Lease Assignment and Assumption must be delivered to a landlord under the Real Property Lease;
(ii) a consent to the assignment of the Real Property Lease from the landlord thereunder in a form reasonably acceptable to the Buyer;
(iii) a duly executed counterpart of an assignment of trademarks in substantially the form attached hereto as Exhibit C (the “Assignment of Trademarks”);
(iv) a duly executed counterpart of an assignment of patents in substantially the form attached hereto as Exhibit D (the “Assignment of Patents”); and
(v) a duly executed counterpart of a transition administrative services agreement in or substantially in the form attached hereto as Exhibit F (the “Transition Administrative Services Agreement”); and
(vi) a certificate that establishes from the share distribution Seller (in form and substance reasonably acceptable to the Buyer) certifying the Seller’s non-foreign status in accordance with Section 1445 of the Company, Code and indicating that no other person other than the Stockholder owns or has any right upon the Sharesregulations promulgated thereunder.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is hereby are further subject to the satisfaction, satisfaction (or waiver by the Buyer, of the following conditions on waiver) at or prior to the ClosingClosing of the following conditions:
(a) The representations and warranties of Sellers contained herein shall be true and correct in all material respects on the Company date hereof and on and as of the Closing Date (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth in such representation or warranty), with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have obtained been true and correct in all material respects as of the waivers, permits, consents, approvals such date (without giving effect to any limitation as to "materiality" or other authorizations, and effected all of the registrations, filings and notices, as may be required by "Material Adverse Effect" set forth in such representation or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedulewarranty);
(b) The Sellers shall have performed in all material respects their obligations, covenants, and agreements under this Agreement required to be performed by them at or prior to the representations and warranties of Closing pursuant to the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correctterms hereof;
(c) All consents, notices, terminations, certificates, filings and approvals set forth on Section 2.5(h) of the Disclosure Letter shall have been obtained, filed or made;
(d) Except as set forth on Section 4.11 of the Disclosure Letter on the date hereof, from and after October 1, 1999, no actionchange has or shall have occurred or is likely to occur, suit that would reasonably be expected to have a Business Material Adverse Effect (excluding any change, event, effect or proceeding shall be pending circumstance arising in connection with the announcement or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any performance of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company The Sellers shall have delivered a certificateto Buyer certificates reasonably requested by Buyer, dated as of the Closing and executed by the Secretary an officer or director of each of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Sellers;
(f) to the extent reasonably available in the applicable jurisdiction, the Company The Sellers or their Affiliates shall have delivered certificates of appropriate governmental officials to Buyer those items set forth in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionSection 2.5 hereof;
(g) the Buyer shall have received from Mexican Sellers' counsel in the United States of America and Spain opinions in form and substance as set forth in Exhibit O attached hereto, each such opinion addressed to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company Buyer shall have delivered received the original corporate minute books cash proceeds of the Companyfinancing transactions contemplated by the Commitment Letters (or replacements thereof on terms reasonably satisfactory to Buyer) necessary to consummate the transactions described herein and provide for the ongoing working capital needs of the Business;
(i) the signatories to each Compensation Committee of the bank accounts Board of Directors of Revlon shall have approved the treatment of the Company shall have been changed as per the Buyer's instructions;options held by Affected Employees in accordance with Section 6.8(n); and
(j) the Buyer or its designee Sellers shall have entered into an Employee Agreement organized and taken such other actions with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) respect to RPHC in accordance with the Stockholder shall have delivered to the Buyer a certificate (RPHC Term Sheet, in each case without regard case, in form and substance reasonably satisfactory to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 1 contract
Samples: Purchase Agreement (Revlon Inc /De/)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by under this Agreement is are subject to fulfillment, prior to or at the satisfaction, or waiver by the BuyerClosing Date, of the following conditions on or prior to conditions, each of which may be waived in writing in the Closingsole discretion of the Buyer:
(a) the Company and the Stockholder shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by hereby, except for any which if not obtained or with respect to effected would not have a material adverse effect on any of the assets, business, financial condition, results of operations or future prospects of the Company in connection with or on the ability of the parties to consummate the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Company and the Stockholder set forth in Clause SECOND Sections 2 and Clause THIRD 3 hereof shall be true and correctcorrect in all material respects when made on the date hereof and shall be true and correct as of the Closing Date as if made as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(c) the Company shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of the Closing;
(d) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent or delay consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), (c), and ) through (d), ) of this Clause 5.1 has been Section 6.01 is satisfied in all respects;
(f) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated;
(g) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company listed on Schedule 6.01 attached hereto;
(h) all actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer;
(i) the Buyer shall have received from Stockholder the cash amount determined in accordance with Section 5.08 hereof;
(j) no action or proceeding by or before any Governmental Entity shall have been instituted or threatened by any person whatsoever which shall seek to restrain, prohibit or invalidate the transactions contemplated by this Agreement or which might affect the right of the Buyer to own the Shares or to own or operate the business of the Company after the Closing;
(k) on or prior to the Closing Date, the Buyer shall have executed employment contracts and other arrangements with Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxx Wolgramm, Xxxxx Xxxxxxxx and Xxxx Xxxxx, upon substantially the terms set forth in Schedule 6.01B; andprovided, however, that this condition shall be deemed to be satisfied with respect to any such employee to the extent such employee agrees to remain employed by the Company after the Closing on terms and conditions no less favorable than those in effect prior to the Closing;
(l) there shall not be outstanding on the Closing Date any obligation of the Company to the Stockholder or any Affiliate of the Stockholder, other than obligations arising from arms' length transactions for the sale of products or services entered into in the Ordinary Course of Business or as otherwise contemplated hereby;
(m) if required under the applicable lease or sublease, the Buyer shall have received estoppel certificates from each lessor from whom the Company leases real property, pursuant to which such lessor consents to the transfer of control of the Company resulting from the transaction contemplated in this Agreement, and certifying that there are no outstanding claims against the Company under any such lease or sublease;
(n) the Buyer shall have received estoppel certificates from each tenant to whom the Company leases real property certifying that there are no outstanding claims against the Company under any such lease;
(o) the Buyer shall have received an endorsement (the "Title Endorsement") to the existing title insurance policy for the Real Estate, dated not less than two (2) business days prior to Closing, containing no exceptions other than the Permitted Encumbrances and otherwise in form and substance reasonably satisfactory to the Buyer;
(p) the Buyer shall have received such affidavits and indemnities executed by the Company as the issuer of the Title Endorsement may reasonably require in order to omit from the Title Endorsement all exceptions for (i) judgments, bankruptcies or other returns against persons or entities whose names are the same as or similar to those of the Company ; (ii) parties in possession other than under rights to possession granted under leases; and (iii) mechanics' or materialmens' liens;
(q) the Buyer shall have received a certificate of occupancy for the Real Estate from the Governmental Entity having jurisdiction thereover, evidencing that the Real Estate may be used legally for the Intended Uses;
(r) the Buyer shall have been permitted to continue its reasonable due diligence with respect to the Real Estate;
(s) the Stockholder shall have delivered paid all transaction success fees due to employees who have elected to receive such fees in cash;
(t) the Stockholder shall have caused all amounts of accrued payroll deducted to purchase American Depositary Shares of the Stockholder's Affiliates under the Xxxx US Holdings Monthly Stock Incentive Plan to have been applied to the Buyer a certificate that establishes purchase of such shares under such plan;
(u) the share distribution Company shall have entered into confidentiality, noncompetition and assignment of inventions agreement with Xxxxx X. Xxxxxxxx and Xxxx X. Xxxxx on terms reasonably satisfactory to the Buyer; and
(v) the Stockholder shall have assigned to the Company all right, title and interest in and to any agreement between the employees of the Company, Company and indicating that no other person other than the Stockholder owns or has any right upon with respect to noncompetition, nondisclosure and assignment of invention by delivery of an instrument in form and substance reasonably satisfactory to the SharesBuyer.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect consents to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Scheduleassignment listed on Schedule 5.2(a);
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct, or true and correct in all material respects, as applicable, as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer a Payment Direction Letter directing the Seller to pay a portion of the Company or Stockholder, as Closing Payment to pay off the case may be, in each such jurisdictioncapital lease obligations with respect to the Acquired Assets;
(g) the Seller shall have delivered to the Buyer a pro forma balance sheet estimating the value only of the Acquired Assets and the Assumed Liabilities at the Closing Date, together with a certificate, signed by the principal financial officer of the Seller, that such balance sheet represents its good faith estimate of the value of the Acquired Assets and the Assumed Liabilities at the Closing Date;
(h) the Seller shall have delivered to the Buyer an update, as of the date prior to the Closing Date, of each list contained in the Disclosure Schedule that lists or describes Acquired Assets (including the lists set forth in Sections 2.10(c), 2.12, 2.13, 2.15, 2.18, 2.22(a) and 2.26 of the Disclosure Schedule);
(i) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(j) the Seller shall have delivered to the Buyer a good standing certificate with respect to the Seller issued by the Secretary of State of the State of Oklahoma;
(k) the Seller shall have provided to the Buyer all necessary documentation of (i) compliance with any applicable environmental transfer statute and (ii) transfer of all material Permits required under Environmental Laws;
(l) the Buyer shall have received executed Non-Competition Agreements in the form attached hereto as Exhibit F from Mexican the following officers and employees of Seller: Keith Fulton and Daniel Xxxxx;
(m) txx Xxxxx xxxll have received from counsel to the Stockholder Seller an opinion in substantially the form attached hereto as Exhibit G, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(jn) the Buyer or its designee shall have entered into an Employee Agreement agreement with Xx. Xxxxxxx Xxxxxxx XxxxxxxxTulsa National Bank to provide automated clearing house processing and other services to be mutually agreed between the Buyer and Tulsa National Bank;
(ko) the Stockholder Seller shall have delivered to the Buyer a certificate (waiver in each case without regard to any qualification the form attached hereto as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a)Exhibit H, (b), (c), and (d), of this Clause 5.1 has been satisfied in all respectsexecuted by Gary Burton; and
(lp) the Stockholder xxx Xxxxx shall have delivered received such other certificates and instruments (including certificates of good standing of the Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the Buyer a certificate that establishes incumbency of officers and the share distribution adoption of the Companyauthorizing resolutions, and indicating that no other person other than a cross-receipt) as it shall reasonably request in connection with the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions purchase of the Purchased Assets contemplated by this Agreement is shall be subject to the satisfaction, or waiver by the Buyer, of the following conditions on fulfillment at or prior to the ClosingClosing Date of the following additional conditions:
(a) the Company Sellers shall have obtained performed and complied in all material respects with the covenants contained in this Agreement which are required to be performed and complied with by the Sellers on or prior to the Closing Date and the representations and warranties of the waivers, permits, consents, approvals Sellers which are set forth in this Agreement (without regard as to any qualifications therein as to materiality or other authorizations, Material Adverse Effect) shall be true and effected all correct as of the registrations, filings date of this Agreement and notices, as may be required by or with respect of the entry and effectiveness of the Sale Order (except to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 extent that any such representation or warranty speaks as of a particular date) as though made at and as of the Disclosure Scheduleentry and effectiveness of the Sale Order except where failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Material Adverse Effect;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received a certificate from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretochief executive officer of Insilco, dated as of the Closing Date, to the effect that, to the best of such chief 42 executive officer's knowledge, the conditions set forth in Section 8.2(a) have been satisfied;
(c) the Purchased Assets shall have been released from all Encumbrances (other than Closing Encumbrances) and there shall be no Encumbrances on the Purchased Assets (other than Closing Encumbrances);
(d) the Sale Order shall provide that any and all liens, claims and encumbrances on the Purchased Assets (other than Closing Encumbrances) shall, upon Closing, attach only to the proceeds of the transactions contemplated hereby and not to the Purchased Assets;
(e) the Buyer shall have received the other items to be delivered pursuant to Section 4.2;
(f) the Sellers shall have obtained Bankruptcy Court approval of the Bidding Procedures Order and of the Termination Payments, in each case substantially in accordance with Sections 7.11 and 7.12 and of the Liquidated Damages, substantially in accordance with Section 9.3;
(g) an order shall have been entered by the Bankruptcy Court authorizing the Sellers to use cash collateral in accordance with a budget approved by the Prepetition Agent pursuant to which the Sellers may pay, to the extent due and payable in accordance with this Agreement and the Bidding Procedures Order entered by the Bankruptcy Court, the Termination Payments and the Liquidated Damages;
(h) the Company Sellers shall have delivered the original corporate minute books obtained Bankruptcy Court approval to assume and assign substantially all of the Company;Assumed Agreements to the Buyer; and
(i) the signatories to each of the bank accounts of the Company Final Remediation Estimate shall have been changed as per be no greater than $2 million. Any condition specified in this Section 8.2 may be waived by the Buyer's instructions;
(j) ; provided that no such waiver shall be effective against the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality unless it is set forth in any representation or warranty) to a writing executed by the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company it in connection with the transactions contemplated by this Agreement, including, without limitation, those referred Closing is subject to in CLAUSE 2.30 satisfaction of the Disclosure Schedule;following conditions:
(bi) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof Section 3 above shall be true and correctcorrect in all material respects at and as of the Closing Date;
(cii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) the Seller shall have procured all of the third party consents specified in Section 5(b) above;
(iv) no action, suit suit, or proceeding shall be pending or threatened by before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any Governmental Entity arbitrator wherein an unfavorable injunction, judgment, order, decree, stipulation ruling or injunction charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or consummation, (iiiC) affect adversely the right of the Buyer to own, own the Acquired Assets or to operate or control any the former businesses of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectSeller;
(dv) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified above in clauses (a), (b), (c), and (d), of this Clause 5.1 has been Section 6(a)(i)-(iv) is satisfied in all respects; together with a xxxx of sale, assignment of Intellectual Property rights and such other instruments of transfer or conveyance as Buyer and its counsel reasonably may request;
(vi) if applicable, the waiting period (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Seller and the Buyer shall have received all applicable authorizations, consents and approvals of governments and governmental agencies referred to in Section 3(c) and Section 4(c) above;
(vii) the Buyer shall have received approval and/or transfer of Major Customers and Suppliers agreements on terms no less favorable than exist on the date of this Agreement and consent of any third party required pursuant to Section 3(o);
(viii) the Buyer shall have concluded its due diligence review of the Seller, the Acquired Assets and the Assumed Liabilities and found the results of its investigation acceptable;
(ix) the Seller (and upon distribution of the Centra Shares to its shareholders, such shareholders) will enter into the Stockholders Agreement;
(x) the Seller (and upon distribution of the Centra Shares to its shareholders, such shareholders) will enter into the Registration Rights Agreement;
(xi) the first closing of a Securities Purchase Agreement between Centra and Stanford Venture Capital Holdings, Inc. shall occur simultaneously with the Closing hereof;
(xii) the Buyer and Seller shall have entered into a mutually acceptable sublease or license agreement for Buyer's use of the premises at Alpharetta, Georgia during an agreed transition period (the "Alpharetta Agreement"); and
(lxiii) all actions to be taken by the Stockholder shall have delivered Seller in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6(a) if it executes a certificate that establishes writing so stating at or prior to the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company representations and warranties of the Seller set forth in Article II that do not contain a materiality qualifier or limitation shall have obtained been true and correct in all material respects as of the waivers, permits, consents, approvals or other authorizations, date of this Agreement and effected shall be true and correct in all material respects as of the registrations, filings and notices, Closing Date as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 if made as of the Disclosure ScheduleClosing Date, except for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date);
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II that contain a materiality qualifier or limitation shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date);
(c) the Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(ef) the Company Seller shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos socialesobtained all Third Party Consents and Governmental Authorizations and effected all Governmental Filings listed in Schedule 5.1(f)(i) of the Company and (ii) obtained any other Third Party Consent and Governmental Authorizations and effected any other Governmental Filing which, if not obtained or effected, and after giving effect to Section 1.6, would reasonably be expected to result in a material adverse effect on the resolutions ability of the Board of Directors Buyer to operate the Business (it being understood that the failure to obtain or effect any or all of the Company required Third Party Consents and Governmental Filings listed in Schedule 5.1(f)(ii) would not reasonably be expected to authorize this Agreement.
(f) to the extent reasonably available result in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as such a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;material adverse effect); and
(g) the Buyer shall have received from Mexican counsel to such other customary certificates (such as certificates of good standing of the Stockholder an opinion Seller in its jurisdiction of incorporation and certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. g) hereto, dated as of connection with the Closing Date;Closing; and
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company The Processing Agreement shall have been changed as per executed by the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), Seller and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesOfficial Payments Corporation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tier Technologies Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer Buyers to -------------------------------------- consummate effect the transactions purchase of the Purchased Stock contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) each of the Sellers and the BVI Sub shall have performed and complied in all material respects with the covenants contained in this Agreement which are required to be performed and complied with by such entity on or prior to the Closing:
(a) Closing Date and the Company shall have obtained all representations and warranties of each of the waivers, permits, consents, approvals or other authorizations, Sellers which are set forth in this Agreement (without regard as to any qualifications therein as to materiality) shall be true and effected correct in all material respects as of the registrations, filings date of this Agreement and notices, as may be required by or with respect of the Closing Date (except to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 extent that any such representation or warranty speaks as of a particular date) as though made at and as of the Disclosure Schedule;Closing Date.
(b) the representations and warranties Buyers shall have received a certificate from the chief executive officer of each of the Stockholder Company and the BVI Sub dated as of the Closing Date, to the effect that, to the best of such officer's knowledge, the conditions set forth in Clause SECOND and Clause THIRD hereof shall be true and correctSection 9.2(a) have been satisfied;
(c) no action, suit or proceeding the Purchased Stock and the Purchased Assets shall have been released from all Encumbrances and there shall be pending no Encumbrances on the Purchased Stock or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would the Purchased Assets (i) prevent consummation of any of other than the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectPermitted Encumbrances);
(d) each of the Stockholder Sellers and the BVI Sub shall have delivered complied with the requirements to permit the sale and transfer of the Purchased Stock and the Purchased Assets to the Buyer Buyers on the stock certificates representing the Sharesterms of this Agreement, in each case duly endorsed or with duly executed stock powers attachedfree and clear of all Encumbrances (except Permitted Encumbrances);
(e) none of the Company Purchased Assets shall have delivered a certificatebeen destroyed, executed by lost, confiscated, abandoned or otherwise made impossible for sale and transfer to the Secretary Buyers under the terms of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.;
(f) to the extent reasonably available in the applicable jurisdiction, the Company Buyers' patent counsel shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as completed a foreign corporation, as to the due qualification (including tax) diligence review of the Company or StockholderPatents, as the case may bepatent applications and patent disclosures, continuations, renewals and divisions; trademarks, service marks, trade dress, trade names, corporate names, logos and Internet domain names, and trademark and service xxxx registrations, renewals and applications therefor and issued its report thereon in each such jurisdictionform and scope satisfactory to Buyers in their sole discretion;
(g) the Buyer Company Shareholders shall have received formed the BVI Sub and the Purchased Assets shall have been sold or otherwise transferred from Mexican counsel the Company to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;BVI Sub; and
(h) the Company Buyers shall have received the other items to be delivered pursuant to Section 4.2. Any condition specified in this Section 9.2 may be waived by the original corporate minute books of Buyers; provided that no such waiver shall be effective against the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality Buyers unless it is set forth in any representation or warranty) to a writing executed by the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Applied Dna Sciences Inc)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfaction, fulfillment or waiver by the Buyer’s waiver, of the following conditions on at or prior to the Closing, of each of the following conditions:
(ai) the Company The Seller Fundamental Representations shall have obtained be true and correct in all respects, except for de minimis inaccuracies, as of the waivers, permits, consents, approvals or other authorizationsdate of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and effected (ii) all other representations and warranties of the registrations, filings Sellers and notices, as may be required by or the Founders (with respect to the Company Sellers, the Owners, the Founders and the Companies) set forth in connection with the transactions contemplated by Article 3 or Article 4 of this Agreement, including, without limitation, those referred to Agreement shall be true and correct in CLAUSE 2.30 all respects as of the Disclosure Scheduledate of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly speak as of a specified date, in which case such representations and warranties shall be true and correct in all respects on and as of such specified date), except in the case of clause (ii) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” qualifiers set forth in such provisions) does not, and would not reasonably be expected to, individually or in the aggregate, constitute a Material Adverse Effect;
(b) The Sellers’ Representative, the representations Sellers and warranties the Founders shall have duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date; provided, however, that (i) with respect to agreements, covenants and conditions that are qualified by materiality, the Sellers’ Representative, Sellers and the Founders shall have performed such agreements, covenants, and conditions, as so qualified, in all respects, and (ii) with respect to the delivery of Required Consents, the Stockholder set forth in Clause SECOND Sellers and Clause THIRD hereof the Founders shall be true deemed to have duly performed and correctcomplied in all material respects if any failure to deliver a Required Consent(s) would not give rise to any material liability against the Business or any Company;
(c) no action, suit or proceeding The Ancillary Agreements set forth in Section 2.2 shall be pending or threatened have been executed and delivered by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement parties to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectdocuments;
(d) The Buyer shall have been provided with copies, certified by an officer of a Seller, of the Stockholder documents and filings evidencing the completion of the Restructuring;
(e) The Sellers’ Representative shall have delivered to the Buyer the stock certificates representing the Shares, Initial Closing Statement in each case duly endorsed or accordance with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Section 1.2(a); and
(f) to Since the extent reasonably available in the applicable jurisdiction, the Company date hereof there shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall not have been changed as per the Buyer's instructions;
(j) the Buyer an effect, change, event, occurrence, development, state of facts or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer circumstance that has had a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesMaterial Adverse Effect.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Arcosa, Inc.)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waiversrepresentations and warranties of the Sellers made in this Agreement (and as modified pursuant to Section 5.4) shall be true and correct in all respects as of the Closing Date (unless they expressly refer to an earlier date) with the same effect as if made at and as of the Closing Time (and for the purpose of this condition, permits, consents, approvals the representations and warranties of the Sellers made in this Agreement shall be read as though none of them contained any “material adverse effect” or other authorizationsmateriality qualification), except to the extent that any breach of such representations and effected all warranties arises from the actions of the registrations, filings and notices, as may be Sellers or the Corporations which are required by this Agreement or with respect are consented to by the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleBuyer;
(b) the representations Sellers shall have complied with and warranties performed all of their obligations in this Agreement to be performed or complied with at or before Closing, except to the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correctextent that any breach of such obligations is consented to by the Buyer;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any since the date of the transactions contemplated Agreement, the business of Trace has been conducted in the Ordinary Course of Business (except as otherwise permitted by this Agreement, (ii) cause and in the absence of any material casualty or material adverse change in the conduct of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectbusiness;
(d) the Stockholder Buyer shall have delivered finalized financing arrangements, satisfactory to the Buyer the stock certificates representing the SharesBuyer, with Blackhawk Capital Partners or another Person, in each case duly endorsed or with duly executed stock powers attachedthe Buyer’s sole discretion, to pay the Purchase Price as specified in this Agreement;
(e) the Company Buyer shall have delivered a certificateagreed to employment terms with the Retained Employees, executed by such terms to be subject to the Secretary completion of Closing and to include compensation, description of duties, non-competition and non-solicitation covenants, and incentive compensation provisions (including, where applicable, participation in the Company, attaching and certifying as to: (i) Buyer’s 401K to the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.extent such employees are eligible for participation);
(f) to as of the extent reasonably available in the applicable jurisdictionClosing Date, the Company Trace shall have delivered certificates contracts which allow for a backlog of appropriate governmental officials in each jurisdiction in at least CDN$19,000,000, which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictioncontracts shall reflect profit margins consistent with Trace’s prior bidding practices;
(g) the Buyer shall have received from Mexican counsel completed its due diligence review of Trace to the Stockholder an opinion as to the matters described its satisfaction in Exhibit 5.1. g) hereto, dated as of the Closing Dateits absolute and sole discretion;
(h) the Company shall have delivered the original corporate minute books consummation of the Companytransactions contemplated by this Agreement will not result in the acceleration of a termination right (or the creation of a termination right) or the actual termination of, any Material Contract;
(i) Trace shall have exercised its option to purchase the signatories Additional Seismic Equipment pursuant to each the terms of the bank accounts of option agreement between Trace and Input-Output Inc. and the Company I/O Option Price shall have been changed as per paid by Trace in cash or debt (which debt shall be incurred on terms and conditions satisfactory to the Buyer's instructions), or has been exercised on the basis that the I/O Option Cost will be paid by Trace (or the Buyer) at the Closing Time or thereafter;
(j) the Buyer or its designee Sellers shall have entered into an Employee the Escrow Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxand the Registration Rights Agreement;
(k) the Stockholder Seller Consents and Approvals and the Buyer Consents and Approvals shall have been obtained with no conditions other than those agreed to in writing by the Buyer, acting reasonably, or complied with on or before the Closing and the Seller Consents and Approvals shall be in form and have terms satisfactory to the Buyer, acting reasonably;
(l) the Sellers shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified above in clauses (aSection 7.1(a), (b), (c), (f), (h) and (d), of this Clause 5.1 has been i) is satisfied in all respects;
(m) the final Schedules to Section 3.1 and Article IV of this Agreement shall have been delivered to the Buyer by the Sellers not less than three business days prior to the Closing, and such Schedules shall be satisfactory to the Buyer in its sole discretion;
(n) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Corporations resigning their positions as an officer or director, as the case may be, other than those whom the Buyer shall have specified in writing at least three business days prior to the Closing; and
(lo) the Stockholder Trace shall have delivered to Buyer consolidated financial statements of the Corporations for the fiscal year ended December 31, 2002, 2003, and 2004, together with the consent (which consent shall be in form acceptable to Buyer, acting reasonably) of the Corporations’ independent auditors to the inclusion of such financial statements and the related reports thereon (i) in the Buyer’s required filings with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, after the Closing Date or (ii) in any registration statement or other offering document required to be prepared by the Buyer in order to register its securities, or perfect an exemption from applicable registration requirements, under the Securities Act of 1933, as amended, or applicable state securities laws. The Buyer may waive any condition specified in this Section 7.1 if it executes a certificate that establishes notice in writing so stating at or prior to the share distribution Closing. If any of the Company, and indicating that no other person conditions specified in this Section 7.1 are not complied with (provided such non-compliance did not arise from the acts or omissions of the Buyer) or waived by the Buyer on or before the Closing Date (other than Section 7.1(g), for which the Stockholder owns Buyer must provide the Sellers with notice of non-satisfaction on or has any right upon before the Sharesdate that is 30 days from the date of this Agreement and if no such notice is received by such date it shall be deemed to have been satisfied) the Buyer may terminate this Agreement by written notice to the Sellers.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect in all material respects as of the Closing Date as if made as of the Closing Date, except (i) for changes expressly permitted by this Agreement and (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date), it being agreed that any materiality or Seller Material Adverse Effect qualification in a representation and warranty shall be disregarded for purposes of this Section 5.1(a);
(b) the Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing (provided, however that Seller's obligations in Section 4.12 hereof shall have been performed in all respects);
(c) other than the Pending Case, no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder FTC shall have delivered granted final approval of the Consent Decree and shall have accepted the Buyer and the transactions contemplated under this Agreement and the Ancillary Agreements pursuant to the Buyer terms of the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedConsent Decree;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a)) through (d) of this Section 5.1 is satisfied;
(f) no Seller Material Adverse Effect shall have occurred or be reasonably likely to occur;
(g) Seller shall have delivered to Buyer, in form reasonably acceptable to Buyer, the written consent to the transactions contemplated hereby from each of the persons and/or entities set forth on SCHEDULE 5.1(g) hereto, including, if applicable, consent to the assignment of any related Assigned Contract identified on such schedule;
(h) the Buyer shall have received a commitment with respect to employment from no fewer than ten Employees engaged in the development or development support of Hyprotech Products or other personnel as follows: (A) three HYSYS Steady State Engineers or technical specialists and two HYSYS Dynamics engineers or technical specialists, (b)B) one GUI engineer or technical specialist, (c)C) one Distillation engineer or technical specialist, (D) one Physical Properties engineer or technical specialist, (E) one Simulation Environment engineer or technical specialist and (d), of this Clause 5.1 has been satisfied in all respectsF) one Reactor engineer or technical specialist; and
(li) the Stockholder Buyer shall have delivered received documentation reasonably acceptable to it that the Security Interests held by Silicon Valley Bank, National Westminster Bank plc and Royal Bank of Scotland plc with respect to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesEngineering Software Assets have been released.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Aspen Technology Inc /De/)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof this Agreement that are qualified by materiality shall be true and correctcorrect in all respects, and those representations and warranties not so qualified shall be true and correct in all material respects as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(b) the Seller shall have performed or complied with in all material respects its agreements and covenants, and shall have satisfied all conditions required to be performed or complied with by Seller under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity in effect wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent prevent, or result in substantial Damages in respect of, the consummation of any of the transactions contemplated by this Agreement, Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectconsummation;
(d) none of the Stockholder Parties shall have delivered received written notice from any Governmental Entity of (i) its intent to institute any Legal Proceeding to restrain or enjoin or nullify this Agreement or the Buyer transactions contemplated hereby, or to commence any investigation (other than a routine letter of inquiry, including a routine civil investigative demand) into the stock certificates representing consummation of this Agreement or (ii) the Shares, in each case duly endorsed or with duly executed stock powers attachedactual commencement of such an investigation;
(e) the Company there shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.occurred no Material Adverse Effect;
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which to Buyer the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionSeller Certificate;
(g) (i) each of the Key Employees (other than Xxxx Xxxxxxxxxx) shall have executed and delivered to the Buyer an Employment Agreement; and (ii) each Business Employee not executing an Employment Agreement shall have received from Mexican counsel executed and delivered to the Stockholder Buyer an opinion executed Confidentiality and Assignment of Inventions Agreement in substantially the form attached hereto as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing DateG;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a landlord’s estoppel certificate in substantially the form attached hereto as Exhibit H, executed and delivered by Fidelity Real Estate Company, LLC with respect to that certain Lease pertaining to office space located at 0 Xxxxx Xxxxxx, Xxxxxx, XX 00000;
(in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyi) the Seller shall have delivered to the effect that each Buyer consents to the assignment to the Buyer of the conditions specified Assigned Contracts listed on Schedule 5.1(i) executed by the other parties thereto, in clauses form and substance reasonably acceptable to the Buyer and its counsel;
(a), j) the Seller shall have delivered to the Buyer copies of all software related to the Business;
(b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; andk) the Seller shall have delivered to the Buyer an executed counterpart to the Krillion License Agreement;
(l) the Stockholder Seller shall have delivered to the Buyer an executed counterpart to the License Agreement;
(m) the Seller shall have delivered to the Buyer an executed counterpart to the Escrow Agreement;
(n) the Seller shall have delivered to the Buyer a certificate that establishes discharge or release of any lien on the share distribution Acquired Assets, executed by Square 1 Bank, in form and substance reasonably acceptable to the Buyer and its counsel;
(o) the Seller and Xxxxx Xxxx, as President of Rovion, Inc. for purposes of Section 278 of Delaware General Corporation Law, shall have executed and delivered an assignment from Rovion, Inc. to Seller of the Companytrademarks set forth on Schedule 5.1(o) and such assignment shall have been filed and recorded with the U.S. Patent and Trademark Office;
(p) the Seller and Xxxxx Xxxx, as President of Rovion, Inc. for purposes of Section 278 of Delaware General Corporation Law, shall have executed and indicating that no delivered an assignment from Rovion, Inc. to Seller of the copyrights set forth on Schedule 5.1(p) and such assignment shall have been filed and recorded with the U.S. Copyright Office;
(q) the registration for each of the domain names set forth on Schedule 5.1(q) shall have been transferred to Seller and Seller shall have delivered to Parent evidence reasonably satisfactory to Parent of such transfer; and
(r) the Buyer shall have received such other person other than certificates and instruments (including certificates of good standing of the Stockholder owns or has any right upon Seller in its jurisdiction of organization and the Sharesvarious foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except (i) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to the following clause (ii)), and (ii) where the failure of any such representation or warranty to be true and correct would not reasonably be expected on an individual or aggregate basis to result in a Business Material Adverse Effect (it being agreed that any materiality or Business Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Business Material Adverse Effect for purposes of this clause (ii));
(b) the Seller shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) as of the Stockholder date of this Agreement (i) all of the Business Employees listed on Schedule 5.1(d)(i)(A), and (ii) at least seventy-five percent (75%) of the Business Employees listed on Schedule 5.1(d)(i)(B) shall have accepted employment offers from the Buyer with effect on the day after the Closing Date and such Business Employees shall have executed and delivered written acceptance of such employment offers and the Buyer’s standard form of proprietary information and confidentiality agreement and of employment;
(e) the Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly copies of executed stock powers attachedconsents to assignment as listed on Schedule 5.1(e);
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) the Seller shall have executed and delivered to the extent reasonably available in Buyer the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;Seller Certificate; and
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as each deliverable of the Closing Date;
(hSeller under Section 1.3(b) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Keithley Instruments Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be referred to in Section 4.2 which are required by on the part of the Seller, except for any failure of which to obtain or with respect effect would not, individually or in the aggregate, have a material adverse effect on the right of the Buyer to own, operate or control the Company in connection with Acquired Assets following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect as of the date of this Agreement and shall be true and correct as of the Closing as though made as of the Closing, except to the extent that the inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a material adverse effect on the right of the Buyer to own, operate or control the Acquired Assets following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(c) the Seller shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations of to conduct the CompanyAcquired Business as currently conducted by the Seller, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing Seller Certificate, the SharesSeller's Secretary Certificate, in each case duly endorsed or with duly executed stock powers attachedand the Ancillary Agreements;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer an update of each list contained in the Company Schedules hereto that lists or Stockholder, as the case may be, in each such jurisdictiondescribes Acquired Assets;
(g) the Buyer shall have received from Mexican counsel to such other certificates, instruments and evidence (including certificates of good standing of the Stockholder an opinion Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. g) hereto, dated as of connection with the Closing Date;Closing; and
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to Buyer the Acquired Assets, the Ancillary Agreements and such other good and sufficient instruments of transfer and conveyance, in form and substance reasonably satisfactory to Buyer a certificate (and its counsel, as shall be effective to vest in each case without regard Buyer, and to any qualification as to knowledge or materiality set forth evidence the vesting in any representation or warranty) Buyer of, good and marketable title to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesAcquired Assets as provided for herein.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect as of the Closing Date as if made as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement, (ii) for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date, subject to clause (iii) below), and (iii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Seller Material Adverse Effect (it being agreed that any materiality qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Seller Material Adverse Effect for purposes of this clause (iii));
(b) the Seller shall have performed or complied with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing, except where the failure to so perform or comply would not reasonably be expected to result in a Seller Material Adverse Effect;
(c) there shall not have occurred any change, effect, event, occurrence, condition or development that is, or is reasonably likely to be, materially adverse to the Business or to the Seller's results of operations, financial condition or assets, taken as a whole; other than any change, effect, event, occurrence, condition or development relating to or arising out of (i) economic factors affecting the economy as a whole, (ii) factors generally affecting the industry or specific markets in which the Seller competes or (iii) this Agreement or the transaction contemplated hereby or the announcement thereof;
(d) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe "Seller Certificate") to the effect that each of the conditions specified in clauses (a)) through (d) (insofar as clause (d) relates to an action, suit or proceeding involving, or a judgment, order, decree, stipulation or injunction against, the Seller) of this Section 5.1 is satisfied;
(b)f) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act and applicable foreign antitrust or trade regulation laws shall have expired or otherwise been terminated, except (c)in the case of foreign antitrust or trade regulation laws) where the consummation of the transactions contemplated by this Agreement before the expiration or other termination of any such waiting period under applicable foreign antitrust or trade regulation law would not reasonably be expected to result in a Seller Material Adverse Effect;
(g) the Seller shall have obtained (or caused to be obtained) all of the Third Party Consents and effected all of the Governmental Filings which are required on the part of the Seller to consummate the transactions contemplated by this Agreement, except for those Third Party Consents and Governmental Filings, which, if not obtained or effected would not in the aggregate reasonably be expected to result in a Seller Material Adverse Effect;
(h) each Beneficial Owner shall have executed and delivered a guaranty agreement in substantially the form attached as Exhibit J-1, and (d), the sole shareholder of this Clause 5.1 has been satisfied the Seller and its beneficial owners shall have executed and delivered a collection guaranty in all respects; andsubstantially the form attached as Exhibit J-2;
(li) the Stockholder Seller shall have delivered to the Buyer a certificate that establishes the share distribution an opinion of the Company, Seller's counsel in substantially the form attached as Exhibit H;
(j) the Seller shall have executed and indicating that no delivered each of the Ancillary Agreements to which it is a party; and
(k) the Seller shall have delivered to the Buyer such other person other than customary certificates as the Stockholder owns or has any right upon Buyer shall reasonably request in connection with the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is hereunder shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) There shall not have occurred and be continuing a Material Adverse Effect;
(b) The Sellers shall have performed and complied with in all material respects all covenants and agreements contained in this Agreement and the other Closing Documents which are required to be performed and complied with by the Sellers on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizationsClosing Date, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND this Agreement and Clause THIRD hereof in the other Closing Documents shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct in all material respects as of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation date hereof or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholderthereof, as the case may be, in each and as of the Closing Date as though made at and as of the Closing Date; provided, however, a failure of this condition shall not constitute a failure for purposes of consummating the Closing unless such jurisdictionfailure materially and adversely affects the Purchased Assets, or Buyer's ability to finance the acquisition of the Purchased Assets or to operate the Purchased Assets;
(gc) There shall be no Encumbrances on the Purchased Assets, other than Permitted Encumbrances;
(d) The Buyer shall have received certificates from Mexican counsel authorized officers of the Sellers, dated the Closing Date, to the Stockholder an opinion as effect that, to such officers' knowledge, the conditions set forth in Sections 8.2(a), (b) and (c) have been satisfied;
(e) MPS shall have assigned to the matters described Buyer or its designee all of its rights and obligations in Exhibit 5.1. g) heretothe IBEW Agreements as they relate to the Transferred IBEW Employees, dated as of to be employed at or in conjunction with the U.S. Assets after the Closing Date;
(f) MNB shall have assigned to the Buyer or its designee all of its rights and obligations in the IBEW Agreements as they relate to the Transferred IBEW Employees to be employed at or in conjunction with the Canadian Assets after the Closing Date;
(g) The Buyer shall have received an opinion from Verrill & Dana, LLP, or other counsel reasonably acceptaxxx xx Buyxx, dated the Closing Date and substantially in the form of Exhibit G-1. As to any matter contained in such opinion which involves the laws of any jurisdiction other than the Federal laws of the United States or the laws of the State of Maine, such counsel may rely upon opinions of counsel admitted in such other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall be delivered together with the opinion of such counsel. Such opinion may expressly rely as to matters of fact upon certificates furnished by MPS and appropriate officers and directors of MPS and by public officials;
(h) the Company The Buyer shall have delivered received an opinion from Clark, Drummie & Company, dated the original corporate minute books Closing Date and suxxxxxtially in the form of Exhibit G-2. As to any matter contained in such opinion which involves the laws of any jurisdiction other than the national laws of Canada or the laws of the CompanyProvince of New Brunswick, such counsel may rely upon opinions of counsel admitted in such other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall be delivered together with the opinion of such counsel. Such opinion may expressly rely as to matters of fact upon certificates furnished by the Sellers and appropriate officers and directors of the Sellers and by public officials;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the The Buyer or its designee shall have entered into obtained an Employee Agreement interconnection agreement, in form and substance reasonably satisfactory to the Buyer, with Xx. Xxxxxxx Xxxxxxx XxxxxxxxNew Brunswick Power Company, on or before September 30, 1998, for the benefit of the Tinker Generating Facility and the transmission lines associated therewith, and such agreement shall be in full force and effect;
(j) The Buyer shall have obtained all Permits and Environmental Permits necessary for the Buyer or its designee to own, operate and maintain the Purchased Assets and to deliver the output thereof to MPS's transmission system at the respective interconnection points specified in the Interconnection Agreements, and to perform its covenants and agreements hereunder and under the other Closing Documents;
(k) All consents and approvals for the Stockholder shall have delivered consummation of the sale of the Purchased Assets (including, without limitation, the assignment of the Sellers' rights, benefits, and interests under the Sellers' Agreements to the Buyer a certificate or its designee) and the assumption of the Assumed Obligations contemplated hereby required under the terms of any of the Sellers' Agreements shall have been obtained by the Sellers;
(in each case l) The Buyer shall have received, for delivery to Buyer's lenders, all consents (including, without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) limitation, consents to the effect that each collateral assignment in favor of the conditions specified Buyer's lenders of the Closing Documents and/or of contracts or agreements included in clauses (athe Purchased Assets), (b)agreements, (c)certificates, opinions, and (d)other documents or instruments by or on behalf of the Sellers as may have been reasonably requested by the Buyer's lenders in connection with the financing, on a non- or limited recourse basis or otherwise, of this Clause 5.1 has been satisfied in all respectsBuyer's acquisition of the Purchased Assets hereunder; and
(lm) the Stockholder The Buyer shall have delivered received the certificate or certificates from each applicable taxing authority required pursuant to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSection 7.8(a).
Appears in 1 contract
Samples: Asset Purchase Agreement (Wisconsin Public Service Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions sale of the Purchased Assets contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) There shall not have occurred and be continuing a Material Adverse Effect;
(b) The Seller shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement which relate to the Purchased Assets and are required to be performed and complied with by the Seller on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizationsClosing Date, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller which relate to the Purchased Assets and are set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct in all material respects as of the transactions contemplated by date of this Agreement, (ii) cause any Agreement and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, Closing Date as though made at and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) There shall be no Encumbrances on the Purchased Assets by virtue of the Indenture;
(d) The Buyer shall have received certificates from authorized officers of the Seller, dated the Closing Date, to the effect that, to the best of such officers' knowledge, the conditions set forth in Sections 8.2(a), (b) and (c) have been satisfied;
(e) Seabrook Station shall, on the Closing Date, be in normal, full power operation;
(f) The Buyer shall have obtained an order, to its reasonable satisfaction, from the FERC determining that following its purchase of the Purchased Assets pursuant to this Agreement the Buyer will be an Exempt Wholesale Generator in accordance with Section 32 of the Holding Company Act and 18 CFR ss.365; and
(g) The Buyer shall have received an opinion from McDexxxxx, Xxll & Emerx, xxunsel for the Seller, dated the Closing Date and satisfactory in form and substance to the Buyer and its counsel, substantially to the effect that:
(1) the Company shall have delivered Seller is a corporation organized, existing and in good standing under the original laws of its state of incorporation and has the corporate minute books power and authority to execute and deliver this Agreement and those Ancillary Agreements which relate to the Purchased Assets and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and such Ancillary Agreements and the consummation of the Companysale of the Purchased Assets contemplated hereby have been duly authorized by all requisite corporate action taken on the part of such Seller;
(2) this Agreement and those Ancillary Agreements which relate to the Purchased Assets have been executed and delivered by Seller and (assuming that the Seller Required Regulatory Approvals and the Buyer Required Regulatory Approvals are obtained) are valid and binding obligations of the Seller, enforceable against the Seller in accordance with their terms, except (A) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceeding therefore may be brought;
(3) the execution, delivery and performance of this Agreement and the Ancillary Agreements by the Seller will (i) not constitute a violation of its Certificate of Incorporation or Bylaws (or similar governing documents), and (ii) to such counsel's knowledge, violate or conflict with, or result in a default under, any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Seller or any of the Purchased Assets is bound;
(4) the Bill xx Sale, the Assignment and other documents described in Section 4.3 are in proper form to transfer to the Buyer title to the Purchased Assets in accordance with this Agreement; and
(5) no declaration, filing or registration with, or notice to, or authorization, consent or approval of any governmental authority is necessary for the consummation by such Seller of the Closing other than (i) the signatories Seller Required Regulatory Approvals, all of such Seller Required Regulatory Approvals which are applicable to each the sale of the bank accounts of the Company Purchased Assets hereunder having been obtained and being in full force and effect with such terms and conditions as shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to imposed by any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c)applicable governmental authority, and (d)ii) such declarations, filings, registrations, notices, authorizations, consents or approvals which, if not obtained or made, would not, in the aggregate have a Material Adverse Effect. As to any matter contained in such opinion which involves the laws of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person any jurisdiction other than the Stockholder owns federal laws of the United States or has any right the laws of Massachusetts, such counsel may rely upon opinions of counsel admitted in such other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall be delivered together with the Sharesopinion of such counsel. Such opinion may expressly rely as to matters of fact upon certificates furnished by the Seller and appropriate officers and directors of the Seller and by public officials.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement Natex Acquisition is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to precedent, each of which may be waived in writing in the Closingsole discretion of the Buyer:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to which are necessary for the Company in connection with consummation of the transactions contemplated by this the Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect in all material respects when made as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct in all material respects as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely have, individually or in the right of the Buyer to ownaggregate, operate or control any of the assets or operations of the Companya Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to evidencing the effect that each Interests, free and clear of the conditions specified in clauses (a), (b), (c), all encumbrances and (d), of this Clause 5.1 has been satisfied in all respects; andliens;
(lf) the Stockholder Seller shall have delivered evidence of the approval of the Natex Acquisition by its Board of Managers and/or its members and any approvals if required by the Company's formation documents;
(g) the Seller shall have delivered evidence of the approval of the Natex Acquisition by its Board of Managers and/or its members and any other approvals required by the Seller's formation documents;
(h) the Seller shall have delivered an opinion of Kay & Boose LLP, counsel to the Seller addressed to the Buyer and dxxxd ax xx the Closing Date in a certificate that establishes form mutually agreeable to the share distribution of Buyer and the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.Seller;
Appears in 1 contract
Samples: Purchase Agreement (Integrated Health Technologies Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller and the Subsidiaries shall have obtained at their own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 5.2 which are required on the part of the Disclosure ScheduleSeller or the Subsidiaries;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.2 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller and the Subsidiaries as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer documents evidencing the release or termination of all Security Interests on the Company or StockholderAcquired Assets, as the case may be, in each such jurisdictionand copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(g) the Buyer shall have received from Mexican counsel to the Stockholder Seller an opinion in substantially the form attached hereto as Exhibit A, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company Buyer shall have delivered the original corporate minute books received such other certificates and instruments (including certificates of good standing of the CompanySeller and the Subsidiaries in their jurisdiction of organization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(i) the signatories to each Buyer in its sole discretion, shall be satisfied with the results of its business, legal and financial due diligence review of the bank accounts of the Company shall have been changed as per the Buyer's instructionsSeller;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. received a fully executed employment agreements from Kxxx X. Xxxxxxx Xxxxxxx Xxxxxxxx;& Cem Exxx and consulting agreements from Jxxxxxxx Xxxxx &Mark Hxxxx; and
(k) the Stockholder Buyer shall have delivered to the Buyer received a certificate (in fully executed Confidentiality, Invention Assignment and Noncompetition Agreement, from each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each officer, employee and consultant of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution Seller as of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing Date.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Nayna Networks, Inc.)
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(a) the Company shall have obtained all of the waiversNo temporary restraining order, permitspreliminary or permanent injunction, consents, approvals cease and desist order or other authorizations, and effected all of the registrations, filings and notices, as may be required order issued by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction Authority that would (i) prevent the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;.
(db) The representations and warranties of the Stockholder Seller and the Company contained in this Agreement or any Ancillary Agreement or any certificate delivered pursuant hereto shall be true and correct as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “material,” “materiality” or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have delivered to the Buyer the stock certificates representing the Sharesa Material Adverse Effect or Seller Material Adverse Effect, in each case duly endorsed or with duly executed stock powers attached;
(e) as applicable. The Seller and the Company shall have delivered a certificate, executed performed in all material respects all obligations and agreements and complied in all material respects with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by them prior to or at the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Closing. The Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of Seller (with respect to itself) and the Company (with respect to itself) a certificate to the effect set forth in the preceding sentences, signed by a duly authorized officer thereof.
(c) The Assignment Agreement shall have been changed as per duly executed and delivered by the Buyer's instructions;Company and the other parties thereto.
(jd) The items required to have been delivered by the Buyer or its designee Seller pursuant to Section 2.2(b) shall have entered into an Employee Agreement been, or shall contemporaneously with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have Closing be, delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesBuyer.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company EXOR and each Stockholder shall have obtained all of the Required Consents and any additional waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by referred to in Section 4.2, except for any which if not obtained or with respect effected would not have a material adverse effect on EXOR or its business, properties, operations, condition (financial or otherwise), assets or liabilities or on the ability of the Parties to the Company in connection with consummate the transactions contemplated by this Agreement, including, without limitation, those referred Agreement (which shall be identified to the Buyer in CLAUSE 2.30 of writing at the Disclosure ScheduleClosing);
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or and operations of EXOR following the CompanyClosing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(c) the representations and warranties of the Stockholders set forth in Articles IIA and IIB shall be true and correct when made on the date hereof and shall be true and correct in all material respects (or in ALL respects in the case of any representation or warranty which includes a concept of materiality) as of the Closing as if made as of the Closing (except for representations and warranties made as of a specific date, which shall be true and correct as of such date);
(d) the Stockholder Stockholders shall have delivered performed or complied in all material respects with all agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedClosing;
(e) the Company shall have delivered a certificate, executed by the Secretary stockholder's equity of EXOR as of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required Closing Date shall be greater than or equal to authorize this Agreement$2,000,000.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Stockholders shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), ) through (b), (c), and (d), e) of this Clause Section 5.1 has been is satisfied;
(g) each director and officer of EXOR shall have signed and delivered to EXOR a resignation from their current positions as directors and officers, which resignations shall be satisfactory in form and substance to the Buyer;
(h) each of Mark Xxxxxxx, Xxyd Xxxxxxxxx xxx Caroxxx X. Xxxxxxx xxxll have executed and delivered to the Buyer the applicable Employment Agreement in substantially the form attached hereto as EXHIBIT A-1 or EXHIBIT A-2, as applicable, along with the Non-Disclosure, Non-Solicitation and Non-Compete Agreement attached as a Schedule thereto;
(i) each employee of EXOR shall have executed and delivered to the Buyer the Buyer's standard form of Non-Disclosure and Non-Solicitation Agreement in substantially the form attached hereto as EXHIBIT B;
(j) each of the Stockholders shall have executed and delivered to EXOR a Stockholder Noncompetition Agreement in substantially the form attached hereto as EXHIBIT C;
(k) the Buyer shall be satisfied in all respects; andwith its due diligence review of EXOR, including, without limitation, with the audited financial statements of EXOR for the year ended December 31, 1996 prepared by KPMG Peat Marwick;
(l) the Stockholder Buyer shall have delivered received from Dechert Price & Rhoaxx xx opinion with respect to the matters set forth in EXHIBIT D attached hereto, addressed to the Buyer a certificate that establishes the share distribution and dated as of the CompanyClosing Date;
(m) the Buyer shall have received a letter from KPMG Peat Marwick, auditors for the Buyer, in a form reasonably satisfactory to the Buyer, to the effect that, and indicating that no other person other than the Buyer shall otherwise be reasonably satisfied that, the Buyer may treat the transaction contemplated by this Agreement as a "pooling of interests" for accounting purposes; and
(n) the spouse of each Stockholder owns or has any right upon residing in a community property state shall have executed and delivered a spousal consent in form reasonably satisfactory to the SharesBuyer and the Stockholders.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller and the Subsidiaries shall have obtained at their own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller or the Subsidiaries;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.2 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller and the Subsidiaries as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer documents evidencing the release or termination of all Security Interests on the Company or StockholderAcquired Assets, as the case may be, in each such jurisdictionand copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(g) the Buyer shall have received from Mexican counsel to the Stockholder Seller an opinion in substantially the form attached hereto as Exhibit D, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company Buyer shall have delivered the original corporate minute books received such other certificates and instruments (including certificates of good standing of the CompanySeller and the Subsidiaries in their jurisdiction of organization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(i) the signatories to each of the bank accounts of the Company Buyer shall have been changed as per the Buyer's instructions;received a fully executed employment agreement from Xxxxxx Xxxxxx; and
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer received a certificate (in fully executed Confidentiality, Invention Assignment and Noncompetition Agreement, from each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each officer, employee and consultant of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution Seller as of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing Date.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate close the transactions contemplated by this Agreement is subject to the satisfaction, satisfaction at or waiver by before the Buyer, Closing of each of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all 7.1.1 Each of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth Sellers, including, but not limited to those representations and warranties in Clause SECOND Article 4 made by the Sellers pertaining to the Company and Clause THIRD hereof the Business, made in or pursuant to this Agreement shall be true and correct;correct on and as of the Closing Date, as if made on and as of the Closing Date (in each case except to the extent such representations are by their express provisions made as of a specified date, in which case they shall be true and correct as of the specified date), and the Buyer shall have received a certificate signed on behalf of the Sellers to such effect and such certificate shall be deemed to be a representation and warranty of the Sellers as of the time immediately preceding the Closing.
(c) 7.1.2 The Sellers shall have performed and complied with all covenants and conditions required under this Agreement to be performed or complied with by the Sellers at or prior to the Closing, and the Buyer shall have received a certificate signed on behalf of the Sellers to such effect.
7.1.3 There shall have been no actionevent, suit occurrence or condition subsequent to the date of this Agreement that could be reasonably deemed to be a Material Adverse Effect.
7.1.4 The Sellers shall have delivered all documents required to be delivered at the Closing pursuant to Section 8.2 hereof.
7.1.5 No claim, suit, action or other proceeding shall be pending or threatened by or before any court or Governmental Entity wherein an unfavorable judgmentBody seeking to restrain, order, decree, stipulation prohibit or injunction would (i) prevent obtain damages or other relief in connection with this Agreement or the consummation of any of the transactions contemplated hereby and no investigation or inquiry shall have been made or commenced by any Governmental Body in connection with this Agreement or such transactions.
7.1.6 The Buyer shall have obtained all Governmental Authorization required to operate the Business on terms and conditions satisfactory to the Buyer.
7.1.7 Subject to the terms of this Agreement, (ii) cause any all actions, proceedings, instruments, and documents reasonably required to carry out this Agreement or incidental hereto, and all other related legal matters, shall have been reasonably approved as to form and substance by the Buyer, and the Buyer shall have received all documents, certificates and other papers reasonably requested by it in connection therewith.
7.1.8 The Buyer shall have secured and obtained all of the requisite financing and consents on terms and conditions satisfactory to the Buyer in order to consummate all of the transactions contemplated hereby and operate the Business after the Closing in the same manner in which it was operated before the Closing.
7.1.9 The approval by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this AgreementBuyer of the consummation of the Closing.
(f) to 7.1.10 The Buyer’s satisfaction with the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates results of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the its due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books diligence investigation of the Company;
’s business, condition (i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (afinancial and otherwise), (b)operations, (c), assets and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesprospects.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(b) the Seller shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(c) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) materially and adversely affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company Seller shall have delivered a certificateto the Buyer an update, executed by the Secretary as of the Companydate prior to the Closing Date, attaching and certifying as to: (i) of each list contained in the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Disclosure Schedule that lists or describes Acquired Assets;
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests, other than Security Interests which are listed in Section 2.9 of the Company or Stockholder, as Disclosure Schedule under the case may be, in each such jurisdictionheading “Permitted Security Interests”;
(g) the Buyer shall have received the written consent of Lexington Corporate Center Associates, LLC to the assignment by the Seller to the Buyer of the Lease dated December 2, 1999 between the Seller and Lexington Corporate Center Associates, LLC;
(h) the Buyer shall have received from Mexican the Seller the FIRPTA Affidavit;
(i) the Buyer shall have received from counsel to the Stockholder Seller an opinion in substantially the form attached hereto as Exhibit E, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;; and
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
received such other certificates and instruments (k) including certificates of good standing of the Stockholder shall have delivered Seller in Delaware and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the Buyer a certificate (incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to connection with the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer under this Agreement to -------------------------------------- consummate the transactions contemplated by this Agreement is hereby to be consummated at the Closing shall be subject to the satisfaction, at or waiver by prior to the BuyerClosing, of the following condition, which may be waived in writing at the option of the Buyer in its sole discretion:
(a) all representations and warranties of the Sellers in Article III of this Agreement shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when made and on and as of the Closing Date as if made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date;
(b) The Sellers shall have executed and delivered the documents required to be executed and delivered by it pursuant to Section 2.4(b) hereof;
(c) all of the terms, covenants and conditions to be complied with and performed by the Sellers on or prior to the Closing:Closing Date shall have been complied with or performed in all material respects;
(ad) the Company The Bankruptcy Court shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect entered orders satisfactory to the Company in connection with Buyer, approving the transactions Break Up Fee, the Expense Reimbursement and the No-Shop Provisions as contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 the sale of the Disclosure Schedule;
(b) Purchased Assets by the representations Sellers to the Buyer, the assumption and warranties assignment by Seller of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of Assumed Contracts to the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the CompanyBuyer, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder orders shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedbecome Final Orders;
(e) Neither of the Company facilities operated by the Sellers and located in Waco, Texas and Paris, Kentucky shall have delivered a certificatebeen damaged or destroyed, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required prior to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) , by fire or other casualty, whether or not fully covered by insurance, such that the Company shall have delivered Business cannot be operated in the original corporate minute books normal course, or there is an interruption in the operations of the Company;
Business which is reasonably expected to last more than fifteen (i15) days after the signatories to each period of time covered by the Sellers’ business interruption insurance or no customer or customers have advised any Seller in writing since the date of this Agreement that it or they will stop, or materially decrease the rate of buying materials, products or services from the Sellers by more than $1.5 million of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesSellers’ annualized contribution margin.
Appears in 1 contract
Samples: Asset Purchase Agreement (Easy Gardener Products LTD)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement transaction is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Agreement shall have obtained all of the waivers, permits, consents, approvals or other authorizations, been approved and effected all of the registrations, filings and notices, as may be required adopted by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleShareholders;
(b) the representations and warranties of the Stockholder set Company, Hornxx xxx Muelxxx xxx forth in Clause SECOND and Clause THIRD hereof Article III shall be true and correct, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(c) no action, suit the Company shall have performed or proceeding shall complied with in all material respects its agreements and covenants required to be pending performed or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by complied with under this Agreement as of or prior to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectClosing;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), ) and (c) (to the extent the Company is a party or is named therein) of Section 6.1 and clauses (a) through (c) of this Section 6.2 is satisfied in all respects;
(e) the Company, Hornxx xxx Muelxxx xxxll have provided the Buyer with proof of payment of the final payment to Prime Capital, Inc. pursuant to the March 26, 1998 Settlement Agreement and Mutual Release;
(f) the Company, Hornxx xxx Muelxxx xxxll have provided the Buyer with (i) proof of payment in full of all Performance Awards granted pursuant to the Company's 1999 Stock Appreciation Plan ("PERFORMANCE AWARDS"), and (dii) releases from each holder of Performance Awards releasing the Company from any and all claims related to or arising out of such Performance Awards;
(g) the Buyer shall have received the report of Browx, Xxkes & Wannxxx, X.C. on the Company's audited financial statements for fiscal year ended January 31, 2000, and a review for the period from January 31, 2000 through March 31, 2000;
(h) each employee identified in Exhibit 5.9 shall have executed the agreement as provided in Section 5.9, above;
(i) in addition to the execution of the agreement pursuant to Section 6.2(h), of this Clause 5.1 has been satisfied above, each Key Employee shall have also executed a non-compete agreement substantially in all respects; andthe form attached hereto as Exhibit 6.2(i);
(j) Hornxx xxxll have executed a consulting agreement and non-compete agreement substantially in the forms as attached hereto as Exhibit 6.2(j);
(k) Muelxxx xxxll have executed an employment letter and non-compete agreement substantially in the forms as attached hereto as Exhibit 6.2(k);
(l) the Stockholder Buyer shall have delivered received from McGuxxx Xxxdx Xxxtle & Bootxx, XXP, counsel to the Company, Hornxx xxx Muelxxx xx opinion in form and substance reasonably satisfactory to the Buyer a certificate that establishes the share distribution and dated as of the CompanyClosing Date; and
(m) all consents and /or waivers under, or amendments to, the Second Amended and Restated Credit Agreement dated as of June 28, 2000 by and among Net2000 Communications Group, Inc., Toronto Dominion (Texas), Inc., as Administrative Agent, TD Securities (USA) Inc., as Lead Arranger and Book Manager, Royal Bank of Canada as Syndication Agent, Goldxxx Xxxhs Credit Partners, L.P., as Co-Documentation Agent, First Union Securities, Inc., as Documentation Agent, and indicating that no other person other than the Stockholder owns or has Lenders named therein, and any right upon of the SharesLoan Documents referred to therein (as in effect from time to time) necessary to consummate the transactions contemplated herein, shall have been obtained and shall be in full force and effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Net2000 Communications Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Sections 2.2 and 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable threatened; and no judgment, order, decree, stipulation or injunction shall be in effect that would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, and no such judgment, order, decree, stipulation or injunction shall be in effectfollowing the Closing;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates to the Buyer an updated list of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationAcquired Assets, as of the day prior to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionClosing Date;
(g) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets other than those permitted under the Escrow Agreement or associated with the Assumed Liabilities, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing such Security Interests;
(h) the Buyer shall have received an opinion from Mexican counsel to the Stockholder an opinion Seller in substantially the form attached hereto as Exhibit C, addressed to the matters described in Exhibit 5.1. g) hereto, Buyer and dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts Key Employees shall not have taken any action which would be prohibited thereby in any material respect if such Person's Employment Agreement were in effect at the time of such action and the Company Seller shall have been changed as per no knowledge of any such Key Employee's intention not to accept employment by the Buyer's instructionsBuyer following the Closing;
(j) the Buyer or its designee a successor entity thereto shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxreceived aggregate gross proceeds of at least $4.0 million from the sale of its securities;
(k) the Stockholder no Seller Material Adverse Effect shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; andoccurred;
(l) the Stockholder Buyer shall be reasonably satisfied that the issuance and sale of the Shares are exempt from the registration requirements of the Securities Act;
(m) the Seller shall have delivered received all necessary consents to the assignment of customer contracts (as set forth in Section 2.10(c) or 2.14 of the Disclosure Schedule), which consent may be conditioned on the Closing;
(n) the Buyer a certificate that establishes and its attorneys, accountants, lenders and other representatives and agents shall have satisfactorily completed their due diligence investigation of the Seller and the Business;
(o) the Buyer shall have received such other certificates and instruments (including certificates of good standing of the Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(p) the Buyer, RFK and the members of RFK shall have entered into the RFK Purchase Agreement;
(q) the Members shall have signed such share exchange agreements and other documents as the Buyer may reasonably request in connection with the share distribution exchange transaction currently contemplated by the Buyer;
(r) the Buyer and its independent accountants have been provided with audited financial statements of the CompanySeller, and indicating that no other person other than or have obtained such information as the Stockholder owns Buyer deems necessary or has any right upon desirable, in its sole discretion, to prepare audited financial statements of the SharesSeller after the Closing hereof; and
(s) each of the Members shall have entered into agreements with the Buyer for the transfer of personal goodwill of the Members to the Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Suncrest Global Energy Corp)
Conditions to Obligations of the Buyer. The obligation of the Buyer -------------------------------------- to -------------------------------------- consummate effect the transactions purchase of the Purchased Assets contemplated by this Agreement is shall be subject to the satisfaction, or waiver by the Buyer, of the following conditions on fulfillment at or prior to the Closing:Closing Date of the following additional conditions (all or any of which may be waived in whole or in part by the Buyer in its sole discretion):
(a) There shall not have occurred and be continuing a Material Adverse Effect, provided, that, subject to Section 3.5, the Company absence of a -------- Material Adverse Effect which solely affects either the Veazie Hydro Project or the Bangor-Pacific Interest shall have obtained all not be a condition to the obligation of the waivers, permits, consents, approvals or other authorizations, and effected all Buyer to effect the purchase of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Scheduleremaining Purchased Assets;
(bi) the The representations and warranties of the Stockholder Sellers set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any correct in all material respects as of the transactions contemplated by date of this Agreement, (ii) cause any Agreement and as of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right Closing Date as though repeated at and as of the Buyer to ownClosing Date, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of Sellers shall have performed and complied with in all material respects the Board of Directors of the Company covenants and agreements contained in this Agreement that are required to authorize this Agreement.
(f) be performed and complied with by the Sellers on or prior to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(hc) The Purchased Assets shall be free and clear of Encumbrances except those Permitted Encumbrances which by definition are permitted to survive the Company shall have delivered the original corporate minute books of the CompanyClosing Date;
(id) the signatories to each The Buyer shall have received certificates from authorized officers of the bank accounts of Sellers, dated the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered Closing Date, to the Buyer a certificate (in each case without regard effect that, to any qualification as to knowledge or materiality the best of such officers' Knowledge, the conditions set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (aSections 8.2(a), (b), ) and (c), ) have been satisfied;
(e) The consents and approvals required to be obtained pursuant to Section 8.1(c) or (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder hereof shall not contain or be granted subject to terms or conditions which could reasonably be expected to have delivered a Material Adverse Effect when compared to the Buyer a certificate that establishes terms and conditions presently applicable to the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.Purchased Assets;
Appears in 1 contract
Samples: Asset Purchase Agreement (Pp&l Inc)
Conditions to Obligations of the Buyer. The obligation of the Buyer BUYER to -------------------------------------- consummate affect the transactions contemplated by this Agreement is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closing:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any Closing of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;subject to the following conditions:
(da) the Stockholder SELLER shall have delivered to furnished the Buyer the stock certificates representing the Shares, in each case BUYER with certified copies of resolutions duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed adopted by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the its Board of Directors authorizing all necessary and proper corporate action approving the execution, delivery and performance of the Company required to authorize this Agreement.
(fb) Except to the extent reasonably available in the applicable jurisdictionwaived hereunder, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories representations and warranties of SELLER contained herein shall be true and correct in all material respects at the Closing Date with the same effect as though made at such time; and (ii) SELLER shall have performed all obligations and complied with all covenants required by this Agreement to each be performed or complied by them prior to the Closing Date.
(c) SELLER shall have obtained and delivered to the BUYER all consents required to consummate the transactions contemplated by this Agreement.
(d) There shall not have occurred (i) any material adverse change in the Acquired Assets or the business, properties, results of operations or financial condition of SELLER, (ii) any loss of or damage to any of the bank accounts Acquired Assets (whether or not covered by insurance) of SELLER which will materially affect or impair the ability of the Company BUYER to own or operate the Acquired Assets.
(e) All statutory requirements for the valid consummation by SELLER of the transactions contemplated by this Agreement shall have been changed as per fulfilled and all authorizations, consents and approvals of all federal, state or local governmental agencies and authorities required to be obtained in order to permit consummation by SELLER of the Buyer's instructions;transactions contemplated by this Agreement and to permit the business now or previously carried on by SELLER with the Acquired Assets to continue unimpaired to any material degree immediately following the Closing Date shall have been obtained. Between the date of this Agreement and the Closing Date, no governmental agency, whether federal, state or local, shall have instituted (or threatened to institute) an investigation or other proceeding which is pending at the Closing Date relating to the transactions contemplated by this Agreement and between the date of this Agreement and the Closing Date no action or proceeding shall have been instituted or, to the knowledge of SELLER, 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 damages in respect thereof.
(jf) the Buyer or its designee SELLER shall have entered into an Employee Agreement complied with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality delivery requirements set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), Section 7.03 of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesAgreement.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate close the transactions transaction contemplated by this Agreement is hereby shall be subject to the satisfaction, or waiver by the Buyer, of the following conditions on fulfillment at or prior to the ClosingClosing Date of the following conditions:
(a) the Company The Seller Parties shall have obtained performed or complied in all of the waivers, permits, consents, approvals material respects with their agreements and covenants contained in this Agreement required to be performed or other authorizations, and effected all of the registrations, filings and notices, as may be required by complied with at or with respect prior to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;Closing Date.
(b) the The representations and warranties of the Stockholder set forth Seller Parties contained in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correct;
(c) no actioncorrect in all material respects, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any when made and on and as of the transactions Closing Date with the same force and effect as if made on and as of such date, except as expressly contemplated or otherwise expressly permitted by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(fc) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the The Buyer shall have received from Mexican the deliveries referred to in Section 3.2.
(d) The Buyer shall have received an opinion of Holland & Knight LLP, counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) heretoSeller Parties ("Sellers' Counsel"), dated as of the Closing Date;Date and addressed to the Buyer, in a form reasonably satisfactory to the Buyer.
(e) The Buyer shall have received such consents, approvals and assurances as the Buyer may reasonably require to ensure the effective continuation of all schedule-based contracts including the ITSP, PES and MOBIS GSA Schedules and the continuation of the prime contracts and subcontracts presented under such schedules.
(f) The Buyer shall have received the Professional Fees Certificate signed by the Sellers.
(g) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or Governmental Authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the transactions contemplated hereby; provided, however, that the parties shall use reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(h) With the Company exception of the 8(a) Contracts, all consents, approvals and waivers disclosed or required to be disclosed on SCHEDULE 4.6 hereto shall have delivered the original corporate minute books been received. Any notifications which do not require consent, approval or waiver of the Company;transactions contemplated hereby listed on SCHEDULE 4.6 required to be given to any third party shall be given at Closing.
(i) Sellers shall have obtained the signatories to each of employee terminations required by Section 6.11 and the bank accounts of the Company Buyer shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement provided with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each copy of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesStumm Release duly executed by Albert Stumm.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer, Parent) of the following conditions on or prior to the Closingadditional conditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Partnerships set forth in Clause SECOND and Clause THIRD hereof this Agreement (when read without regard to any qualification as to materiality or Partnership Material Adverse Effect contained therein) shall be true and correctcorrect as of the date of this Agreement and shall be true and correct as of the Effective Time as though made as of the Effective Time (provided, however, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representation - 36 - and warranty that, individually or in the aggregate, do not have a Partnership Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) the Partnerships shall have performed or complied with their agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time, except when any non-performance or non-compliance does not have a Partnership Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(c) no action, suit or proceeding Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation judgment or injunction Order would (i) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Companyconsummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Partnerships shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantythe “Partnership Certificate”) to the effect that each of the conditions specified in clauses (a), (b), ) through (c), and ) (d), insofar as clause (c) relates to Proceedings involving the Partnerships) of this Clause 5.1 has been Section 5.2 is satisfied in all respects, and covering such other matters as the Parent shall reasonably request; and
(le) the Stockholder Purchased Loans shall have delivered to the Buyer a certificate that establishes the share distribution value of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesat least fifty million dollars ($50,000,000.00).
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingconditions:
(a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect in all material respects (except for such representations and warranties that are already qualified by their terms by a reference to materiality or Business Material 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 as of the Closing Date, except for those representations and warranties that address matters only as of a particular date (which shall be true and correct as of such date);
(b) each Seller shall have performed or complied with the agreements and covenants required to be performed or complied with by it under this Agreement as of or prior to the Closing;
(c) no third party action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable seeking to prevent consummation of the transactions contemplated by this Agreement and no judgment, order, decree, stipulation or injunction would (i) prevent enjoining or preventing the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder Sellers shall have executed and delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company all applicable waiting periods (and any extensions thereof) under applicable antitrust or trade regulation laws shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.expired or otherwise been terminated;
(f) each of Bxxxx Xxxxx, Jxxxx Xxxxx and Sxxx Xxxxx shall have executed and delivered to the extent reasonably available Buyer a Noncompetition Agreement in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business form attached hereto as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdictionExhibit H;
(g) each of Bxxxx Xxxxx and Jxxxx Xxxxx shall have executed and delivered to the Buyer the respective Consulting Agreements;
(h) the Sellers shall have obtained all Third Party Consents listed in Schedule 5.1(h);
(i) the Buyer shall have received from Mexican counsel to a certificate of good standing of the Stockholder an opinion Sellers in their jurisdictions of organization and a certificate as to the matters described in Exhibit 5.1. g) hereto, dated as incumbency of officers and the Closing Date;
(h) the Company shall have delivered the original corporate minute books adoption of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructionsauthorizing resolutions;
(j) the Buyer or its designee shall have entered into an Employee Agreement received the audited financial statements with Xx. Xxxxxxx Xxxxxxx Xxxxxxxxrespect to the Business for the nine month period ending December 1, 2005 and the twelve month period ending December 31, 2006, and such audited financial statements shall not be materially different than the Financial Statements such that adjustments made in the audited financial statements, individually or in the aggregate, do not result in a negative adjustment to operating income for any such period by 5% or more; provided, that Buyer shall have notified the Sellers within five Business Days of receipt of such audited financial statements if Buyer determines that any such negative adjustment will cause this condition not to have been satisfied;
(k) all statutory notice requirements under Chapter 49 of the Stockholder laws of Hong Kong (Transfer of Businesses (Protection of Creditors) Ordinance) shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c)been completed, and no actions or proceedings shall have been instituted thereunder (d), of this Clause 5.1 has and no written notice that proceedings have been satisfied in all respects; andinstituted shall have been received) during the notice period;
(l) the Stockholder Buyer shall have delivered to received a Tax Indemnification Agreement from Bxxxx Xxxxx in the form mutually agreed upon by the Parties; and
(m) the Buyer and BJS Family Partnership, Ltd., as landlord, shall have entered into a certificate that establishes lease for the share distribution of the Companypremises located at 3000 Xxxxxxxx Xxxxxxxx Campus at Weston, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.3000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, on terms summarized on Exhibit J.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingadditional conditions:
(a) the Company shall Seller will have obtained at its own expense (and will have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 Section 4.2 which are required on the part of the Disclosure ScheduleSeller;
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND Sections 2.1 (first sentence), 2.2 and Clause THIRD hereof shall 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality will be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement will be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties will be true and correct as of such date);
(c) the Seller will have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding shall Legal Proceeding will be pending or threatened by or before any Governmental Entity wherein an unfavorable threatened, and no judgment, order, decree, stipulation or injunction will be pending, threatened, or in effect which would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, and no such judgment, order, decree, stipulation or injunction shall be in effectfollowing the Closing;
(de) the Stockholder shall Seller will have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall Seller will have delivered to the Buyer a good standing certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) with respect to the effect that each sale of the conditions specified in clauses (a), (b), (c), and (d), of Acquired Assets under this Clause 5.1 has been satisfied in all respects; andAgreement;
(lg) Each of the Stockholder shall Members will have entered into employment agreements with the Buyer on terms satisfactory to the Buyer and such Members;
(h) The Seller will have delivered to the Buyer a certificate that establishes Landlord Estoppel Certificate, in the share distribution form attached as Exhibit D; and
(i) the Buyer will have received such other certificates and instruments (including certificates of good standing of the CompanySeller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified organizational and indicating that no other person other than operational documents, certificates as to the Stockholder owns or has any right upon incumbency of officers and the Sharesadoption of authorizing resolutions) as it will reasonably request in connection with the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Energy Solutions, Inc.)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company Seller shall have obtained at its own expense (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect to the Company notices listed in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure ScheduleSchedule 5.1(a);
(b) the representations and warranties of the Stockholder Seller set forth in Clause SECOND the first sentence of Section 2.1 and Clause THIRD hereof in Section 2.3 and any representations and warranties of the Seller set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, and all other representations and warranties of the Seller set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date);
(c) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding Legal Proceeding that is not disclosed in Section 2.19 of the Disclosure Schedule shall be pending or threatened by or before any Governmental Entity in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets, or operations to conduct the business of the CompanySeller as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(de) the Stockholder Seller shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedSeller Certificate;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company Seller shall have delivered certificates of appropriate governmental officials in each jurisdiction in which to the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporationBuyer an update, as of the date prior to the due qualification Closing Date, of each list contained in the Disclosure Schedule that lists or describes Acquired Assets (including tax) the lists set forth in Sections 2.10(c), 2.12, 2.13, 2.15, 2.16, 2.21 and 2.26 of the Company or Stockholder, as the case may be, in each such jurisdictionDisclosure Schedule);
(g) the Seller shall have delivered to the Buyer documents evidencing the release or termination of all Security Interests on the Acquired Assets, and copies of filed UCC termination statements with respect to all UCC financing statements evidencing Security Interests;
(h) the Buyer shall have received such other certificates and instruments (including certificates of good standing of the Seller in New Jersey and the various foreign jurisdictions in which it is qualified, certified organizational documents, certificates as to the incumbency of officers and/or managers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(i) either (i) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as State of New Jersey Department of the Closing Date;
Treasury, Division of Taxation a notice pursuant to N.J. Rev. Stat. § 54:50-38(a) informing the Buyer of any New Jersey state tax claims against the Seller or (hii) having timely filed the Company shall have delivered the original corporate minute books of the Company;
(iBulk Sale Notification, no notice pursuant to N.J. Rev. Stat. § 54:50-38(a) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) received by the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) within the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respectsapplicable timeframe; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer -------------------------------------- to -------------------------------------- consummate the transactions contemplated to be performed by this Agreement it in connection with the Closing is subject to the satisfaction, or waiver by the Buyer, of the following conditions on or prior to the Closingconditions:
(a) the Company Sellers shall have have, at their expense, (i) except as contemplated by Section 2.9. obtained all of the waivers, permits, consents, approvals or other authorizationsauthorizations from third parties and Governmental Entities, and effected all of the registrations, filings and noticesnotices with or to Governmental Entities, as may be required necessary to permit the Sellers to consummate the transactions contemplated by this Agreement, and (ii) obtained all other waivers, permits, consents, approvals or with respect to the Company other authorizations and effected all other registrations, filings and notices necessary or desirable in connection with the transactions contemplated by this Agreement, including, without limitation, those referred to except in CLAUSE 2.30 case of clause (ii) for any which if not obtained or effected would not have a material adverse effect on the right of the Disclosure Schedule;Buyer to own, operate or control the Acquired Assets or conduct the NMC Business or the CMS Business following the Closing or on the ability of the parties to consummate the transactions contemplated by this Agreement,
(b) the representations and warranties of the Stockholder Sellers set forth in Clause SECOND and Clause THIRD hereof Article III shall be true and correctcorrect in all material respects, except for representations and warranties already qualified by materiality, which shall be true and correct as stated, as of the Closing as if made as of the Closing, except for representations and warranties made as of a date, which shall be true and correct in all material respects, except for representations and warranties already qualified by materiality, which shall be true and correct as stated, as of such date;
(c) the Sellers shall have performed or complied in all material respects with their respective agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(d) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Acquired Assets or operations of to conduct the CompanyNMC Business or the CMS Business as currently conducted and as presently proposed to be conducted following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Sellers shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (b), (c), and ) through (d), ) of this Clause 5.1 has been Section 6.1 is satisfied in all respects;
(g) the Buyer and the Sellers shall have entered into a Services and Facilities Agreement in a form mutually agreeable to the parties hereto;
(h) all waiting periods applicable to this Agreement and the transactions contemplated hereby under the HSR Act shall have expired or been earlier terminated;
(i) the Buyer shall have received any and all waivers, permits, consents, approvals or other authorizations from third parties and Governmental Entities, including all registrations, filings and notices with or to Governmental Entities, as may be necessary to permit the Buyer to consummate the transactions contemplated by this Agreement;
(j) the Buyer shall have received from the Sellers and their respective officers all customary closing certificates as it shall have requested;
(k) all actions to be taken by the Sellers in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer;
(l) NMC shall have received the consent of NationsBank/Bank of America to consummate the transactions contemplated hereby and the release of American National Bank & Trust Company of Chicago relating to the Acquired Assets; and
(lm) Renaissance shall have executed and delivered (i) the Agreement to be Bound by Registration Agreement among Renaissance, GTCR Fund VI, L.P., ZC Corp., GTCR VI Executive Fund, L.P. and certain other parties thereto (collectively, the "GTCR Parties") (the "Registration Joinder") and (ii) the Agreement to be Bound by Stockholders Agreement among Renaissance and the GTCR Parties (the "Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesJoinder").
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by under this Agreement is are subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company Seller shall have obtained all of the waivers, permits, consents, approvals or and other authorizations, and effected all of the registrations, filings and notices, as may be required by or with respect from third parties and Governmental Entities (including without limitation all consents to the Company in connection with assignment of the Assumed Contracts) necessary to effect the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) [intentionally omitted];
(c) the representations and warranties of the Stockholder Seller set forth in Clause SECOND and Clause THIRD hereof Article II shall be true and correctcorrect in all material respects as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct as of such date;
(cd) the Seller shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement and any other agreements between the Parties as of or prior to the Closing Date;
(e) no action, suit or proceeding shall be pending or threatened by or as of the Closing Date before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets Assets or operations of the CompanyBusiness, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(df) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder Seller shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warrantyotherwise) to the effect that each of the conditions specified in clauses (a), (bc), (c), d) and (d), i) of this Clause 5.1 has been Section 4.1 are satisfied in all respectsrespects as of the Closing Date;
(g) the Buyer shall have received an opinion of Bulger, Young, counsel to the Seller, dated as of the Closing Date, in the form attached hereto as Exhibit C;
(h) the Buyer shall have entered into employment agreements reasonably satisfactory in form to the Buyer with each of the following individuals: Xxxxxx Xxxxxxxx, Sanjay Xxxxxxxx, Xxxx Siemens and Xxxxx Xxxxxxxx;
(i) all corporate and other proceedings required to be taken on the part of the Seller to authorize or carry out this Agreement and to convey, assign, transfer and deliver the Assets shall have been taken;
(j) on the Closing Date the Buyer shall receive good, clear, and marketable title to the Assets, free and clear of all liens, liabilities, Security Interests and encumbrances of any nature whatsoever;
(k) the Buyer shall have received at or prior to the Closing Date each of the following documents:
(i) the Xxxx of Sale;
(ii) the Records, all in form and substance satisfactory to the Buyer;
(iii) such contracts, files and other data and documents pertaining to the Assets or the Business as the Buyer may reasonably request (including without limitation the Assumed Contracts);
(iv) a certificate of Industry Canada as to the legal existence and good standing of the Seller in Canada;
(v) certificates of the Secretary of the Seller attesting to the incumbency of the Seller's officers and the authenticity of the resolutions authorizing the transactions contemplated by this Agreement; and
(vi) a cross receipt executed by the Buyer and the Seller.
(l) the Stockholder Buyer shall have delivered completed its due diligence review relating to the Buyer a certificate that establishes Assets and shall be satisfied, in Buyer's sole discretion, with the share distribution results of such investigation; and
(m) all actions to be taken by the Seller in connection with the consummation of the Companytransactions contemplated hereby and all certificates, opinions, instruments and indicating that no other person other than documents required to effect the Stockholder owns or has any right upon transactions contemplated hereby shall be reasonably satisfactory in form and substance to the SharesBuyer.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement to be consummated at the Closing is subject to the satisfaction, or waiver by the Buyer, satisfaction of the following conditions on or prior to the Closingconditions:
(a) the Company Emerson shall have obtained all (or caused to be obtained):
(i) axx Xxxxents or transfers of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be required by or Intellectual Property listed on Schedule 5.2(a)(i) hereto; and
(ii) with respect to contracts executed after the Company in connection with the transactions contemplated by date of this Agreement, including, without limitationAgreement and prior to Closing, those referred Consents, if any, which, if not obtained or effected, would individually, or in the aggregate, reasonably be expected to result in CLAUSE 2.30 of the Disclosure Schedulea Company Material Adverse Effect;
(b) the representations and warranties of the Stockholder Emerson set forth in Clause SECOND and Clause THIRD hereof this Agreement shall be true and correctcorrect as of the xxxx xx this Agreement and as of the Closing as though made as of the Closing, except to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties shall be true and correct as of such date) other than such failures to be true and correct that could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(c) no actionEmerson shall have, suit or proceeding shall caused its Subsidiaries to have, performed or comxxxxx xn each case in all material respects with their respective agreements and covenants required to be pending performed or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by complied with under this Agreement as of or prior to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectClosing;
(d) Emerson shall have completed the Stockholder Reorganization;
(e) no Company Maxxxxxx Adverse Effect shall have occurred since October 1, 2001;
(f) Emerson shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attachedEmerson Certificate;
(ex) xxe Buyer shall have received the resignaxxxxx, or shall effect the removal, effective as of the Closing, of each director and officer of the Companies and the Company shall have delivered a certificate, executed Subsidiaries specified by the Secretary of Buyer in writing at least five business days prior to the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.Closing; and
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(gh) the Buyer shall have received from Mexican counsel to such other customary certificates and instruments (including certificates of good standing, where applicable, of Emerson, each Asset Seller, the Stockholder an opinion Companies and the Company Subsidiaries ix xxxxx jurisdiction of organization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the matters described incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in Exhibit 5.1. g) hereto, dated as of connection with the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the SharesClosing.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate effect the transactions purchase of the Purchased Assets contemplated by this Agreement is shall be subject to the satisfaction, fulfillment at or waiver by prior to the Buyer, Closing Date of the following conditions additional conditions:
(a) Each Seller shall have performed and complied in all respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by such Seller on or prior to the Closing:
(a) Closing Date and the Company representations and warranties of such Seller which are set forth in this Agreement shall have obtained be true and correct in all respects as of the waivers, permits, consents, approvals or other authorizations, date of this Agreement and effected all as of the registrations, filings Closing Date as though made at and notices, as may be required by or with respect of the Closing Date (except to the Company extent that any such representation or warranty speaks as of a particular date, in connection with which case such representation and warranty shall be true and correct as of such date), unless the transactions contemplated by this Agreementfailure of such Seller to so perform and comply and the failure of such representations and warranties of such Seller to be true and correct in all material respects would not, includingin the aggregate, without limitation, those referred reasonably be expected to in CLAUSE 2.30 of the Disclosure Schedulecreate a Material Adverse Effect;
(b) the representations and warranties The Buyer shall have received certificates from authorized officers of AFDI (on behalf of the Stockholder Sellers) dated the Closing Date, to the effect that the conditions set forth in Clause SECOND and Clause THIRD hereof shall be true and correctSections 8.2(a) through 8.2(g) have been satisfied;
(c) no actionAll federal, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent state and local government consents and approvals required for the consummation of any the sale of the transactions contemplated by this AgreementPurchased Assets, (ii) cause any the operation of the transactions contemplated Business by Buyer, the Seller Required Regulatory Approvals and the Buyer Required Regulatory Approvals, shall have been obtained or become final orders (a "FINAL ORDER"), which for all purposes of this Agreement means a final order (whether or not any rehearing or appeal thereof is pending) that has not been revised, stayed, enjoined, set aside, annulled or suspended, with respect to which any required waiting period has expired; and as to which all conditions to effectiveness prescribed therein or otherwise by law, regulation or order have been satisfied), unless the failure to obtain the required consents and approvals would not, in the aggregate, reasonably be rescinded following consummation or (iii) affect adversely the right of the Buyer expected to own, operate or control any of the assets or operations of the Company, and no such judgment, order, decree, stipulation or injunction shall be in effectcreate a Material Adverse Effect;
(d) All consents and approvals for the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary consummation of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) sale of the Company and (ii) Purchased Assets contemplated hereby required under the resolutions terms of the Board of Directors of the Company required any note, bond, mortgage, indenture, contract or other agreement to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder any Seller is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company party shall have been changed as per obtained, unless the Buyer's instructionsfailure to obtain such consents and approvals would not, in the aggregate, reasonably be expected to create a Material Adverse Effect;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
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Samples: Asset Purchase Agreement (Ameriserve Food Distribution Inc /De/)
Conditions to Obligations of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is subject to the satisfaction, satisfaction (or waiver by the Buyer, ) of the following conditions on or prior to the Closingadditional conditions:
(a) the Company and the Sellers shall have obtained (and shall have provided copies thereof to the Buyer) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as may be which are required by or with respect to on the part of the Company and the Sellers, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in connection with the aggregate, have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement, including, without limitation, those referred to in CLAUSE 2.30 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholder set forth in Clause SECOND and Clause THIRD hereof shall be true and correct;
(c) no action, suit or proceeding Legal Proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Companyconsummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(c) the Buyer shall have received a certificate of or other statement from Company’s transfer agent and registrar certifying that as of the Closing Date there are 31,187,585 shares of Company Common Stock issued and outstanding; and
(d) the Stockholder Company shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) evidence that the charter documents Company’s Board of Directors is authorized to consist of three (estatutos sociales3) individuals, (ii) evidence of the resignations of all individuals who served as officers of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) immediately prior to the extent reasonably available in the applicable jurisdictionClosing Date, the Company which resignations shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated be effective as of the Closing Date;
, (hiii) evidence of the appointment of the following three (3) directors to serve following the Closing Date and compliance by the Company shall have delivered with the original corporate minute books requirements of Section 14(f) of the Company;
Exchange Act: Xxx Xxxxx Xxxx, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx; and (iiv) the signatories to each evidence of the bank accounts appointment of such executive officers of the Company to serve immediately following the Closing Date as shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of designated by the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Sharesincluding Xxx Xxxxx Tang as Chief Executive Officer.
Appears in 1 contract
Conditions to Obligations of the Buyer. The obligation obligations of the Buyer to -------------------------------------- consummate the transactions contemplated by this Agreement is shall be subject to the satisfactionfulfillment, or waiver by the Buyer, of the following conditions on at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Buyer in its sole discretion:
(a) the Company shall have obtained all The representations and warranties of the waiversSeller contained in this Agreement or any Ancillary Agreement or any schedule, permits, consents, approvals certificate or other authorizations, and effected all of the registrations, filings and notices, as may document required to be required by delivered pursuant hereto or with respect to the Company thereto or in connection with the transactions contemplated hereby or thereby (other than in all cases the Specified Provisions) shall be true and correct in all material respects both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except in all cases where the failure to be so true and correct (in each case, without giving effect to any limitation or qualification as to "materiality" (including the word "material") or "Material Adverse Effect" set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Seller or the Business. The Seller shall have performed all obligations and agreements and complied with all covenants and conditions required by this AgreementAgreement (other than Specified Provisions) or any Ancillary Agreement to be performed or complied with by the Seller prior to or at the Closing in all material respects. The Buyer shall have received from the Seller a certificate representing and warranting that the conditions set forth in the preceding sentences of this Section 7.3(a) have been duly satisfied, including, without limitation, those referred to in CLAUSE 2.30 signed by a duly authorized officer of the Disclosure Schedule;Seller.
(b) All consents, approvals or authorizations of, or registrations, declarations or filings (other than the representations consents, approvals or authorizations, registrations, declarations and warranties of the Stockholder set forth filings described in Clause SECOND and Clause THIRD hereof shall be true and correct;
(cSection 7.1(b)) no actionwith, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent Authority required for the consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation shall have been obtained or (iii) affect adversely the right of the Buyer to own, operate or control any of the assets or operations of the Company, filed and no such judgment, order, decree, stipulation or injunction shall be in full force and effect;
(d) the Stockholder shall have delivered to the Buyer the stock certificates representing the Shares, in each case duly endorsed or with duly executed stock powers attached;
(e) the Company shall have delivered a certificate, executed by the Secretary of the Company, attaching and certifying as to: (i) the charter documents (estatutos sociales) of the Company and (ii) the resolutions of the Board of Directors of the Company required to authorize this Agreement.
(f) to the extent reasonably available in the applicable jurisdiction, the Company shall have delivered certificates of appropriate governmental officials in each jurisdiction in which the Company or the Stockholder is incorporated, resident or required to qualify to do business as a foreign corporation, as to the due qualification (including tax) of the Company or Stockholder, as the case may be, in each such jurisdiction;
(g) the Buyer shall have received from Mexican counsel to the Stockholder an opinion as to the matters described in Exhibit 5.1. g) hereto, dated as of the Closing Date;
(h) the Company shall have delivered the original corporate minute books of the Company;
(i) the signatories to each of the bank accounts of the Company shall have been changed as per the Buyer's instructions;
(j) the Buyer or its designee shall have entered into an Employee Agreement with Xx. Xxxxxxx Xxxxxxx Xxxxxxxx;
(k) the Stockholder shall have delivered to the Buyer a certificate (in each case without regard to any qualification as to knowledge or materiality set forth in any representation or warranty) to the effect that each of the conditions specified in clauses (a), (b), (c), and (d), of this Clause 5.1 has been satisfied in all respects; and
(l) the Stockholder shall have delivered to the Buyer a certificate that establishes the share distribution of the Company, and indicating that no other person other than the Stockholder owns or has any right upon the Shares.
Appears in 1 contract
