Closing Deliveries by Purchaser At the Closing on the Closing Date the Purchaser shall deliver to the Seller.
(a) The Closing Payment to be delivered by the Purchaser pursuant to Section 3.03(a) of this Agreement;
(b) The Supply Agreements duly executed by Purchaser (or its appropriate Affiliates as set forth on Exhibits D-1, D-2, D-3 and D-4);
(x) The Transition Services Agreement duly executed by Purchaser (or its appropriate Affiliate as set forth on Exhibit E);
(d) Certified copies of the Purchaser's articles of incorporation and all amendments thereto, certified by the Secretary of State of the State of North Carolina as of date not more than ten Business Day prior to the Closing Date;
(e) Certified copies of minutes or unanimous written consents of the Board of Directors of the Purchaser approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated under this Agreement;
(f) A Certificate, dated the Closing Date, executed by the appropriate officer of the Purchaser, required by Section 11.02 of this Agreement;
(g) An agreement executed by the Purchaser reflecting the assumption of the liabilities set forth in Section 3.06(a) of this Agreement, in the form attached hereto as Exhibit G; and
(h) Such other documents as the Seller or its counsel may reasonably request to carry out the purposes of this Agreement, including, but not limited to, the documents to be delivered pursuant to Article XI of this Agreement.
Deliveries by Purchaser At each Closing, Purchaser shall deliver to Stayton with respect to the Initial Closing Properties, or each Deferred Property being conveyed, as applicable, the following:
(a) the Cash Consideration Amount payable to Stayton at the applicable Closing in accordance with Section 2.5(c), and, if applicable in connection with the Initial Closing, the instruments contemplated by Section 2.6(b) evidencing the Rollover Equity;
(b) a fully executed assignment and assumption agreement described in Section 8.3(c) above;
(c) in connection with the Closing of the Initial Closing Properties only, with respect to Properties in which Purchaser has NOT received all Licensing Approvals on or prior to the Initial Closing Date, a signed Interim Operating Agreement, with all exhibits and schedules attached thereto;
(d) a fully executed assignment and assumption agreement described in Section 8.3(f) above;
(e) if applicable, duly completed and executed real estate transfer tax filings for the applicable Properties consistent with Section 14.13(c);
(f) a closing statement, prepared and approved by Stayton and Purchaser, consistent with the terms of this Agreement and duly executed by Purchaser;
(g) such other assignments, instruments of transfer, and other documents as Stayton may reasonably require in order to complete the transactions contemplated hereunder or to evidence compliance by Purchaser with the covenants, agreements, representations and warranties made by it hereunder, in each case, duly executed by Purchaser;
(h) a duly executed and sworn Secretary's Certificate from Purchaser certifying that Purchaser has taken all necessary action to authorize the execution of all documents being delivered hereunder and the consummation of all of the transactions contemplated hereby and that such authorization has not been revoked, modified or amended; and
(i) an executed and acknowledged incumbency certificate from Purchaser certifying the authority of the officers of Purchaser to execute this Agreement and the other documents delivered by Purchaser to Stayton at the Closing.
Buyer’s Deliveries at Closing At the Closing, Buyer shall deliver the following to the Seller:
Purchaser’s Deliveries Subject to the fulfillment or waiver of the conditions set forth in Sections 6.2, Purchaser shall execute and/or deliver to Seller all of the following:
(i) Payment of the Purchase Price as required under Section 3.3(a) hereof.
(ii) An assumption agreement, duly executed by Purchaser, under which Purchaser assumes those Assumed Liabilities described in Section 2.2 hereof.
(iii) An incumbency and specimen signature certificate with respect to the officers of Purchaser executing this Agreement and Purchaser's Ancillary Documents on behalf of Purchaser.
(iv) A certified copy of resolutions of Purchaser's Board of Directors, authorizing the execution, delivery and performance of this Agreement and Purchaser's Ancillary Documents
(v) A closing certificate executed by an executive officer of Purchaser (or any other officer of Purchaser specifically authorized to do so), on behalf of Purchaser, pursuant to which Purchaser represents and warrants to Seller that Purchaser's representations and warranties to Seller are true and correct as of the Closing Date as if then originally made (or, if any such representation or warranty is untrue in any respect, specifying the respect in which the same is untrue), that all covenants required by the terms hereof to be performed by Purchaser on or before the Closing Date, to the extent not waived by Purchaser in writing, have been so performed (or, if any such covenant has not been performed, indicating that such covenant has not been performed), and that all documents to be executed and delivered by Purchaser at the Closing have been executed by duly authorized officers of Purchaser.
(vi) Such other documents from Purchaser as may reasonably be required in order to effectuate the transactions contemplated (i) hereby and (ii) by the Purchaser's Ancillary Documents.
Sellers’ Representative (a) Each of the Sellers hereby appoints Xxxx Xxxxx as Seller’s Representative hereunder for the purposes of representing his or its individual interests. Each of the Sellers hereby authorizes the Sellers’ Representative to act on his or its behalf with respect to all matters arising under this Agreement requiring or contemplating the possibility of some notice to be sent to or from, or some action to be taken by, the Sellers, including acting as the Sellers’ representative for the purpose of settling on behalf of the Sellers any claims made by Buyer under Section 12.1(a)(i), representing the Sellers in any indemnification proceedings under Section 12.3, approving any waivers or amendments in accordance with Section 13.6, but excluding the settling of any claims made by Buyer under Section 12.1(a)(ii) against a Seller. Except as aforesaid, each Seller hereby agrees to be bound by any and all notices sent and actions taken (and notices not sent and actions not taken) by the Sellers’ Representative on his or its behalf pursuant to this Agreement. If for any reason the Sellers’ Representative shall be unable to perform its duties hereunder as Sellers’ Representative, the holders of a majority in interest of the Interests owned immediately prior to the Initial Closing shall appoint a replacement Sellers’ Representative. Buyer shall be entitled to rely exclusively upon any communications or writings given or executed by the Sellers’ Representative and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Sellers’ Representative. Buyer shall be entitled to disregard any notices or communications given or made by any Seller, in his or its individual capacity, which is contrary to a notice or communication given or made by the Sellers’ Representative.
(b) In performing his duties under this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Sellers’ Representative hereunder or thereunder, (i) the Sellers’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, unless by the Sellers’ Representative’s gross negligence or willful misconduct, and (ii) the Sellers’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Sellers’ Representative pursuant to such advice shall in no event subject the Sellers’ Representative to liability to any Seller unless by the Sellers’ Representative’s gross negligence or willful misconduct. All of the immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Initial Closing, any Subsequent Closing and/or any termination of this Agreement.
Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
Representations by Purchasers; Resale by Purchasers (a) Each Purchaser severally represents and warrants to the Company and the Guarantors that it is an institutional “accredited investor” within the meaning of Rule 501(a)(1),(2),(3) or (7) under the Securities Act.
(b) Each Purchaser severally acknowledges that the Notes have not been registered under the Securities Act and represents and warrants to, and agrees with, the Company and the Guarantors that it will not offer or sell the Offered Securities within the United States or to, or for the account or benefit of, U.S. persons, except (i) pursuant to Rule 144A or any other exemption from the registration requirements of the Securities Act, if available, or (ii) to non-U.S. persons outside the United States, in accordance with Regulation S. Each Purchaser severally represents and agrees that it has offered and sold the Notes, and will offer and sell the Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Notes, and such Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Rule 144A and Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of the Notes, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Notes from it during the restricted period a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.” Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Notes except for any such arrangements with the other Purchasers or affiliates of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates will not offer or sell the Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
Buyers’ representatives After this Agreement has been signed by the Parties and the Deposit has been lodged, the Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and expense. These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers and the Buyers’ representatives shall sign the Sellers’ P&I Club’s standard letter of indemnity prior to their embarkation.
Closing Deliveries by Seller At the Closing, Seller shall deliver to Buyer, in each case in form and substance reasonably satisfactory to Buyer:
(a) all such instruments of sale, assignment, conveyance and transfer, as the parties agree are customary and reasonably necessary to assign and transfer the Shares to Buyer;
(b) a certificate, dated the Closing Date, executed by Seller, as required by Section 7.01;
(c) a certificate, duly completed and executed by Seller pursuant to Treasury Regulations Section 1.1445-2(b)(2) certifying that Seller is not a “foreign person” within the meaning of Section 1445 of the Code, and a validly completed and duly executed IRS Form W-9 from each Person receiving funds pursuant to Section 2.02(b);
(d) a certificate of the Secretary of the Company, dated the Closing Date, as to (i) the good standing of the Company in its jurisdiction of organization; (ii) the completeness and lack of amendments to the Organizational Documents; and (iii) the effectiveness of any resolutions of such Company passed in connection with this Agreement and the transactions contemplated hereby;
(e) the written consents of the third Persons, as set forth on Section 3.02(e) of the Disclosure Schedule, with respect to the change of control of the Company that will occur upon the consummation of the transactions contemplated by this Agreement and/or any deemed assignment of any Contract that will result therefrom (and all such consents and waivers shall be in full force and effect);
(f) payoff letters for the Repaid Indebtedness to the effect that, upon receipt of payment under such payoff letters, the lender shall have been paid in full for such Repaid Indebtedness and any Liens relating thereto shall be released;
(g) resignations, effective as of the Closing Date, of the directors and officers of the Company, as requested by Buyer at least three (3) Business Days prior to the Closing;
(h) the organizational record books, minute books and company seal of Company;
(i) a release in the form of Exhibit A, effective as of the Closing Date, duly executed by Seller;
(j) a certificate, dated the Closing Date, executed by Seller, setting forth (i) the aggregate balances of cash and cash-equivalents of the Company as of the Closing after the Estimated Pre-Closing Tax Obligation has been determined (the “Retained Cash”), and (ii) the aggregate balance of the Repurchase Reserve; and
(k) all other documents required to be entered into by Seller pursuant to this Agreement or reasonably requested by Buyer to convey the Shares or to otherwise consummate the transactions contemplated by this Agreement.
Closing Deliveries by Buyer At the Closing, Buyer shall deliver, or cause to be delivered, to Seller:
(a) The Initial Purchase Price in accordance with Section 3.3.(a);
(b) The certificates, consents and other documents required to be obtained or delivered pursuant to Article VIII;
(c) The Porcine Substance Supply Agreement, duly executed by Buyer;
(d) The IB Supply Agreement, duly executed by Buyer;
(e) The IB Technology Transfer Agreement, duly executed by Buyer;
(f) The Patent License Agreement duly executed by Buyer;
(g) The TTA Assignment duly executed by Buyer;
(h) The Transition Services Agreement, duly executed by Buyer;
(i) The Dutch Asset Purchase Agreement duly executed by Buyer;
(j) The Liability Agreement duly executed by Buyer and Amphastar Pharmaceuticals Inc. ;
(k) The Stability Testing Services Agreement duly executed by Buyer,
(l) The Porcine Insulin for Biotech Supply Agreement duly executed by Buyer,
(m) The IB Quality Agreement duly executed by Buyer,
(n) The PI Quality Agreement duly executed by Buyer,
(o) The CDAs duly executed by Buyer,
(p) The PI Supply Agreement,
(q) The XXX,
(r) A Buyer Parent guarantee letter in substantially the form attached hereto as Exhibit S, duly executed by Buyer Parent to secure the performance of Buyer’s or/and Buyer’s Affiliate’s obligations as set forth in the Transaction Documents (other than this Agreement) (the “Buyer Parent Guarantee”).
(s) Such other documents, certificates, agreements and other writings as may be reasonably necessary or desirable to effectuate the transactions contemplated by this Agreement.
