Shareholders’ Fees The Transfer Agent shall be entitled to charge the Fund’s shareholders directly, and may redeem shares of the Fund held in a shareholder’s Account to satisfy such charges, in accordance with the following provisions:
Payment at Closing The Borrower shall have paid (A) to the Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in Section 5.3 and any other accrued and unpaid fees or commissions due hereunder, (B) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents.
Deliveries at the Closing At the Closing: -------------------------
(a) Seller and/or Parent shall deliver or cause to be delivered to Buyer the following:
(i) a good and sufficient xxxx of sale for the Assets, selling, delivering, transferring and assigning to Buyer all of Seller's and Affiliate's right, title and interest in and to the Assets, free and clear of any and all Liens other than Permitted Liens, in substantially the form attached hereto as Exhibit A (the "Xxxx of Sale"), together with such assignments and --------- ------------ other documentation reasonably requested by, and in form and substance reasonably satisfactory to, Buyer to validly vest Buyer with all of Seller's and Affiliate's right, title and interest in or to the Assets, free and clear of all Liens other than Permitted Liens;
(ii) consents, in substantially the form attached hereto as Exhibit B-1, to the assignment of the contracts listed on Schedules 2.30 and ----------- -------------- 2.31 of the Seller Disclosure Schedule; ----
(iii) copies, certified by an authorized officer of Seller, of minutes or resolutions of the board of directors and Parent, as sole stockholder, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(iv) copies, certified by an authorized officer of Parent, of minutes or resolutions of the board of directors, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(v) the Escrow Agreement, in substantially the form attached hereto as Exhibit D (the "Escrow Agreement"), executed by each of --------- ---------------- Seller and Parent;
(vi) documents in form and substance reasonably satisfactory to Buyer and its counsel evidencing that the approvals and consents specified in Sections 6.1(c) and 6.3(c) hereof have been obtained and are in full force and effect; and
(vii) all other documents and instruments required hereunder to be delivered by Seller to Buyer at the Closing;
(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) an instrument of assumption of liabilities, in substantially the form attached hereto as Exhibit C, by which Buyer shall assume --------- the Assumed Liabilities as of the Closing, together with such other documentation reasonably requested by Seller to cause Buyer to assume the Assumed Liabilities;
(ii) the Escrow Agreement executed by Buyer; and
(iii) all other documents and instruments required hereunder to be delivered by Buyer to Seller at the Closing;
(c) Buyer shall deposit the Escrow Amount with the Escrow Agent in accordance with Article VIII and the Escrow Agreement. ------------
Transactions at the Closing The closing of the transactions set forth herein (the "Closing") shall take place at York Gate, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, within ten business days after the date on which all conditions to the Closing shall have been satisfied and all legally required regulatory approvals (including the approval of the Controller of Restrictive Trade Practices, which approval shall not include any conditions or restrictions (the “Anti-trust Approval”)) shall have been obtained, or thereafter at such other time, date and place as may be agreed by the Parties (the time and date of the Closing being herein referred to as the “Closing Date”). In the event that the Closing does not take place within 90 days of the Effective Date, each Party shall be entitled to terminate this Agreement without giving rise to any right or claim by the other Party hereto, excluding claims for breaches of obligations or representations by any Party hereto prior to such termination; provided, however, that no Party may terminate this Agreement pursuant to this Section 3 if such Party's failure to fulfill any of its obligations under this Agreement shall have been a principal reason that the Closing shall not have occurred within the 90-day period of the date hereof. At the Closing, the following transactions shall occur, which transactions shall be deemed to take place simultaneously and no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents have been delivered:
(1) Seller shall transfer to the Purchaser the Purchased Shares, free and clear of any and all Encumbrances.
(2) Seller shall deliver to Purchaser duly executed irrevocable instructions from the Seller to the broker holding the Purchased Shares or to the holder registered as holding the Purchased Shares with any registration company or otherwise, instructing the electronic transfer of the Purchased Shares to the respective accounts of the Purchaser, as shall be provided to Seller by Purchaser.
(3) The Purchaser shall transfer to the bank account of the Seller the Purchase Price. The Purchase Price shall be paid in US$ by wire transfer of immediately available funds. Any tax due by Seller with respect to the Seller's sale of the Purchased Shares shall be borne exclusively by the Seller and Seller shall indemnify the Purchaser in the event that any taxing authority requires Purchaser to pay the tax liability of Seller with respect to the sale of the Purchased Shares hereunder. The Purchaser shall deliver to the Seller, promptly following its receipt, any notice, demand or claim it receives from any taxing authority in respect of any tax due with respect to the Seller and its sale of the Purchased Shares. Without derogating from Seller's indemnification obligations as set forth above and the Purchaser's right to timely comply with any requirement made to it by a taxing authority, the Seller shall have the right (at its sole discretion and expense) to directly negotiate and settle any such tax requirement with the relevant taxing authority.
Deliveries at Closing Buyers’ Parent shall have delivered or caused to be delivered to Sellers’ Representative the following documents, each properly executed and dated as of the Closing Date, and in form and substance reasonably acceptable to Sellers’ Representative:
(a) the Tredegar Brasil Deliverables set forth in Section 2 of Exhibit D;
(b) the Tredegar India Interests Purchase Agreement and the documents and instruments set forth in Section 2.4 thereunder that are required to be delivered at Closing in order to effect the purchase and sale of the Tredegar India Interests and the transfer of legal ownership of the Nominee Interest as contemplated thereby;
(c) a certificate of an authorized officer of Buyers’ Parent certifying as to the satisfaction of the closing conditions set forth in Sections 9.1 and 9.2;
(d) a certificate of the secretary or other authorized officer of Buyers’ Parent certifying as to: (i) the accuracy and completeness of attached copies of the Organizational Documents of each Buyer certified by the applicable Governmental Authority as of a recent date, and (ii) the resolutions of the equityholders of Buyers, if required, and the board of directors or the board of managers, as applicable, of Buyers authorizing and approving the execution and delivery of this Agreement by Buyer and all other agreements contemplated hereby, the performance of Buyers’ obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby;
(e) instruments necessary to effect the replacement, effective as of Closing, of the directors, managers and officers, as applicable, of the Target Companies and Target Subsidiaries set forth on Annex 8.5(h), including, as required by applicable Law, resolutions of the governing bodies of a Target Company or any Target Subsidiary and amendments to applicable Organizational Documents;
(f) the Escrow Agreement; and
(g) the Transition Services Agreement.
At the Closing (i) Echo shall, and the Echo Shareholders shall cause Echo to, contribute, convey, transfer, assign and deliver, or cause to be contributed, conveyed, transferred, assigned and delivered, to the Company, free and clear of all Liens (other than Permitted Liens), and the Company will accept from Echo, shares of common stock of Echo Holdco representing the Echo Contributed Percentage of the issued and outstanding capital stock of Echo Holdco, subject to the terms and conditions of this Agreement (the “Echo Contribution”). In consideration of the Echo Contribution, the Company shall, at the Closing, (A) issue Units to Echo representing a Membership Percentage equal to 30.0% (before taking into account the Employee Pool), subject to adjustment as set forth herein, and Echo shall accept such Units, and (B) admit Echo as a Member, with the rights, powers, obligations and duties set forth in the LLC Agreement (the “Echo Membership Consideration”).
(ii) Each outstanding and unexercised vested (or vesting upon the Closing) Echo Holdco Option with an exercise price less than the Echo Per Share Purchase Price shall immediately and automatically be forfeited and cancelled, and the Echo Optionholder thereof (a “Vested Optionholder”) shall be entitled to receive in exchange therefor (i) an amount of the Echo Purchase Price (including any additional payments pursuant to Section 2.03(a)) equal to such Vested Optionholder’s pro rata portion (based on such Vested Optionholder’s Echo Deemed Option Shares Outstanding) of the Total Echo Option Cash Amount and (ii) Echo Securities (with equivalent value to such vested (or vesting upon the Closing) Echo Holdco Options other than those Echo Holdco Options receiving a portion of the Echo Purchase Price in clause (i) above) subject to terms to be agreed upon by MCK, Echo and Echo Holdco.
(iii) Each Echo Holdco Option (i) that was outstanding but unvested immediately prior to the Closing and (ii) that was outstanding and vested (or vesting upon the Closing) with an exercise price greater than or equal to the Echo Per Share Purchase Price, shall immediately and automatically be forfeited and cancelled and the Echo Optionholder thereof shall be entitled to receive in exchange thereof Echo Securities (with equivalent value to such Echo Holdco Options) subject to terms to be agreed upon by MCK, Echo and Echo Holdco.
(iv) The Echo Shareholders shall sell to the Company, and the Company will purchase from the Echo Shareholders, free and clear of all Liens (other than Permitted Liens), shares of common stock of Echo Holdco (allocated among the Echo Shareholders as determined by Echo Holdco prior to Closing and set forth on the Estimated Echo Closing Statement) representing the Echo Purchase Price Percentage of the issued and outstanding capital stock of Echo Holdco, subject to the terms and conditions of this Agreement (the “Echo Holdco Share Transfer” and, together with the Echo Contribution, the “Echo Contributions and Transfers”). At the Closing, the Company shall deliver to the Echo Shareholders, as the aggregate purchase price for the shares transferred to the Company pursuant to the Echo Holdco Share Transfer and Vested Optionholders, an amount equal to the Echo Purchase Price, in immediately available funds by wire transfer to accounts for the benefit of the Echo with a bank in the United States designated by the Echo Representative by notice to the Company, which notice shall be delivered not later than two Business Days prior to the Closing Date (the “Echo Holdco Sale Consideration” and, together with the Echo Membership Consideration, the “Echo Membership and Sale Consideration”).
(v) MCK shall cause one or more of its wholly-owned, direct or indirect Subsidiaries (each, an “MCK Contributor”) to contribute, convey, transfer, assign and deliver, or cause to be contributed, conveyed, transferred, assigned and delivered, to the Company, free and clear of all Liens (other than Permitted Liens), and the Company will accept from the MCK Contributors, 100% of the Core MTS Business (including the MCK Licensed Intellectual Property but excluding the MCK IPCo Owned Intellectual Property and the equity interests of certain MCK Contributed Entities (the “MCK DRE Contributed Entities”)), subject to the terms and conditions of this Agreement (the “Non-IP Contribution”). In consideration of the Non-IP Contribution, the Company shall, at the Closing, (i) issue Units to the MCK Contributors representing an aggregate Membership Percentage equal to the Non-IP Initial Percentage, subject to adjustment as set forth herein, and MCK shall cause the MCK Contributors to accept such Units, and (ii) admit each MCK Contributor as a Member, with the rights, powers, obligations and duties set forth in the LLC Agreement (the “Non-IP Membership Consideration”).
(vi) MCK shall cause MCK IPCo to contribute, convey, transfer, assign and deliver, or cause to be contributed, conveyed, transferred, assigned and delivered, to the Company, free and clear of all Liens (other than Permitted Liens), and the Company will accept from MCK IPCo, the MCK IPCo Owned Intellectual Property and the equity interests of the MCK DRE Contributed Entities, subject to the terms and conditions of this Agreement (the “MCK IPCo Contribution” and, together with the Non-IP Contribution, the “MCK Contributions”). In consideration of the MCK IPCo Contribution, the Company shall, at the Closing, (i) issue Units to MCK IPCo representing a Membership Percentage equal to the MCK IPCo Initial Percentage, subject to adjustment as set forth herein, and MCK shall cause MCK IPCo to accept such Units, (ii) admit MCK IPCo as a Member, with the rights, powers, obligations and duties set forth in the LLC Agreement, and (iii) assume the MCK Promissory Note (the “IPCo Membership Consideration” and, together with the Non-IP Membership Consideration, the “MCK Membership Consideration”). On the Closing Date, the Company shall repay the MCK Promissory Note Principal Amount in full satisfaction thereof in immediately available funds by wire transfer to an account of MCK with a bank in New York City designated by MCK, by notice to the Company, which notice shall be delivered not later than two Business Days prior to the Closing Date (the “MCK Note Payment”).
(vii) Immediately after consummation of the Echo Contributions and Transfer and the MCK Contributions, the Company shall contribute all the assets and liabilities from the Echo Contributions and Transfer and the MCK Contributions to NewCo Intermediate Holdings, which in turn shall contribute all the assets and liabilities from the Echo Contributions and Transfer and the MCK Contributions to NewCo Holdings, in each case for which no additional equity interests of NewCo Intermediate Holdings or NewCo Holdings will be issued.
Agreement to Sell and Purchase the Shares At the Closing (as defined in Section 3), the Company will sell to the Purchaser, and the Purchaser will buy from the Company, upon the terms and conditions hereinafter set forth, the number of Shares (at the purchase price) shown below:
Agreement to Subscribe Purchase Price (i) Seller and Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Act and/or Rule 506 under Regulation D ("Regulation D") as promulgated by the United States Securities and Exchange Commission (the "Commission") under the Act; and
(ii) Buyer hereby subscribes for up to 3,000 shares of Preferred at a value of $1,000.00 per each share of Preferred for an aggregate amount of $3,000,000.00USD which Preferred shall contain such terms, provisions, and conditions pursuant to the Certificate of Designation attached as Exhibit A to and forming an integral part of this Agreement. The Buyer shall pay to the Company $3,000,000.00 for 3,000 shares of Preferred on the date the Preferred is duly executed by the Company and received in escrow by the Buyer's counsel (the "Closing Date").
(iii) The Company shall grant to the Buyer the following Warrants ("Warrants") to purchase up to an aggregate of 150,000 Shares of the Company, with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of Two Dollars and 50/100 ($2.50) per Share expiring three (3) years after the Closing Date and Warrants to purchase up to an aggregate of 200,000 shares of the Company with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of One Dollar and 875/1000 ($1.875) per Share expiring three (3) years after the Closing Date;
(a) On the Closing Date and upon receipt by the Company of the Three Million and No/100 Dollars ($3,000,000) for the 3,000 Shares of Preferred, the Company shall issue to the Buyer a Warrant to purchase up to One Hundred and Fifty Thousand (150,000) Shares at an exercise price of Two Dollars and 50/100 ($2.50) per Share, and, the Company shall issue to the Buyer a Warrant to purchase up to Two Hundred Thousand (200,000) Shares at an exercise price of One Dollar and 875/1000 ($1.875) per Share with the term of each Warrant being for a period of three (3) years from the Closing date; and Each Warrant shall be substantially in the form attached hereto as Exhibit B.
Actions at the Closing Simultaneously with the execution of this Agreement or as with regard to the transfer of securities as soon thereafter as is practicable:
(a) The Seller shall deliver to the Company (i) a copy of a certificate of good standing (or similar documents applicable for such jurisdictions) for the Seller, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Seller's jurisdiction of organization; and (ii) a certificate from the Seller’s secretary or director certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Seller’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors and the Shareholders authorizing the execution, delivery and performance of this Agreement and each document to which they are a party or bound, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, and (z) the incumbency of directors authorized to execute this Agreement or any other document to which the Seller is or is required to be a party or otherwise bound.
(b) The Company shall deliver to the Seller (i) a copy of a certificate of good standing for the Company, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Company’s jurisdiction of organization; and (ii) a certificate from the Company’s secretary or authorized officer certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Company’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors authorizing the execution, delivery and performance of this Agreement and each document to which it is a party or bound, respectively, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, including the appointment of the individuals nominated by the Seller as the directors and Mr. Xxxxx Xxxxxx as the Chief Executive Office of the Company with immediate effect at Closing, and (z) the incumbency of officers or directors authorized to execute this Agreement or any other document to which the Company is or is required to be a party or otherwise bound.
(c) Each of the Shareholders shall deliver to the Company the certificate(s) representing their Seller Securities owned by each such Shareholder, duly endorsed or accompanied by stock powers duly executed in blank and otherwise in a form acceptable for transfer on the books of the Company, such certificates may be delivered to the Company’s registrar or transfer agent.
(d) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Shareholders calculated in accordance with Section 2.1(b).
(e) The Company Preferred Shareholder shall deliver to the Company the cancellation request and executed agreements as needed for surrendering of all of the Series A Preferred Stock owned by him on the books of the Company, such cancellation request may be delivered to the Company’s transfer agent.
(f) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue all authorized shares of the Series A Preferred Stock in book entry form to the Shareholders.
(g) The Company shall deliver to the Company Preferred Shareholder a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Company Preferred Shareholder calculated in accordance with Section 2.1(c).
(h) The Company shall deliver to the Seller a copy of the written resignation of Xx. Xxx Xxxx from his position as Chief Executive Officer of the Company.
(i) The Shareholders and the Company Preferred Shareholder shall deliver to the Company counterparts duly executed by them to the Lock-Up Agreement and the Registration Rights Agreement.
(j) The Company shall deliver to the Seller duly executed copies of the Employment Agreements.
(k) The Company and the Company Preferred Shareholder shall deliver validly executed transfer documents in accordance with Section 7.3 dated as of the date hereof and effective as of the next Business Day after the date hereof.
