Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall: (i) deliver to the Paying Agent: (A) on behalf of the Sellers, the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds to the account designated by the Paying Agent (the “Closing Date Payment”); and (B) the Paying Agent Agreement; (ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement; and (iii) pay, on behalf of the Company or Sellers, the following amounts: (A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate; (B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate; (iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule; (v) deliver to the Escrow Agent: (A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d); (B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08; (C) the Escrow Agreement; (vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and (vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule. (b) At the Closing, each Seller and Optionholder shall deliver to Buyer: (i) stock certificates evidencing the Shares owned by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s)); (ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and (iii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by such Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 of this Agreement.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, but immediately prior to the consummation of the Membership Interests Purchase and in exchange for the Real Estate Purchase Price, the Company and the PropCo Buyer (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, and thereby effect the Real Estate Purchase, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to closing set forth in Article V thereof); provided, however, that if the PropCo Buyer assigns the Real Estate Purchase Agreement to a designee pursuant to the terms of the Real Estate Purchase Agreement, the PropCo Buyer shall guarantee all of the obligations of its designee thereunder. The Membership Interests Purchase, the Real Estate Purchase and the other transactions contemplated by this Agreement and the Real Estate Purchase Agreement are referred to herein as the “Transactions”.
(b) The Company shall (i) conduct a physical counting of the Cage Cash and Kiosk Cash located on the Company Real Property and (ii) obtain an account balance statement from the Company’s banks showing the amount of Cash in the Company’s bank accounts, and the amount of the Cash Deduction, in each case as of the Reference Time (the “Cash Count”). The aggregate amount of Cash and the Cash Deduction determined in accordance with the preceding clauses (i) and (ii), absent any dispute from the OpCo Buyer’s representatives in connection with the Cash Count, shall be included in the determination of the amount of Closing Date Company Cash, subject to any adjustment pursuant to Section 2.06. To the extent permitted by applicable Gaming Authorities, the OpCo Buyer may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date without limitation of either the OpCo Buyer’s or the Seller’s rights under Section 2.06; provided, however, that such representatives shall not interfere with the Company’s conduct of the Cash Count.
(c) At the Closing, each of the Buyers shall:
(i) deliver or cause to the Paying Agent:
(A) be delivered on behalf of the Sellers, Company the Cash Consideration plus amount payable to each counterparty or holder (or agent on behalf of such counterparty or holder) of Indebtedness identified on Schedule 2.04(c)(i) to the Estimated Closing Cash less extent such Indebtedness remains outstanding following the sum application of (1) the proceeds of the Real Estate Purchase Price Adjustment Escrow Amount(the “Payoff Indebtedness”) in order to fully discharge, repay or prepay such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto (2other than contingent indemnification liabilities), as specified in the Debt Payoff Letters and in accordance with this Agreement;
(ii) deliver or cause to be delivered on behalf of the Indemnification Escrow AmountCompany the amount payable to each Person who is owed a portion of the Transaction Expenses (other than Transaction Expenses that are to be borne by the Buyers, as provided in this Agreement), as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Option Cashout AmountClosing;
(iii) deliver or cause to be delivered an amount equal to the Escrow Amount by wire transfer of immediately available funds into an account designated by the Escrow Agent (the “Escrow Account”), which shall be held and distributed in accordance with the terms of the Escrow Agreement to satisfy any adjustments to the Membership Interests Purchase Price in favor of the OpCo Buyer pursuant to Section 2.06;
(4iv) deliver to the Estimated Seller the Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, Cash Consideration by wire transfer of immediately available funds to the a bank account designated or accounts and in such proportions as specified by the Paying Agent Seller in writing to the Buyers at least three (3) Business Days prior to the “Closing Date Payment”)Closing; and
(B) the Paying Agent Agreement;
(iiv) deliver to Sellers the Ancillary Documents and Seller all other agreements, documents, instruments or certificates required to be delivered by Buyer the Buyers at or prior to the Closing pursuant to Section 8.03 7.03 of this Agreement.
(d) At the Closing, the OpCo Buyer shall additionally:
(i) deliver to the Seller and the Company a joinder to the Company Operating Agreement, duly executed by the OpCo Buyer and a counterpart signature page to the Assignment Agreement;
(ii) deliver to the Seller the Escrow Agreement, duly executed by the OpCo Buyer; and
(iii) paydeliver to the Seller amendments to the St. Mary’s Sublease and the Gap Building Lease, on behalf substantially in the form attached to the Real Estate Purchase Agreement as Exhibits H-1 and H-2, duly executed and acknowledged by Greektown.
(e) At the Closing, the Seller shall:
(i) deliver to the Buyers a certificate in compliance with Treasury Regulations Section 1.1445-2, certifying that the Transactions are exempt from withholding under Section 1445 of the Code, provided, that the Buyers’ sole recourse in the event that the Seller fails to deliver such certificate shall be to make an appropriate withholding under Section 1445 of the Code;
(ii) deliver to the OpCo Buyer an assignment agreement, in form and substance reasonably acceptable to the OpCo Buyer (the “Assignment Agreement”), executed by the Seller, pursuant to which (x) the Seller shall transfer and assign to the OpCo Buyer all of the Membership Interests and (y) concurrently with the Closing and the execution of a joinder to the Company Operating Agreement executed by the OpCo Buyer, the board of managers of the Company or Sellers, shall admit the following amounts:
(A) OpCo Buyer as the Estimated Closing Indebtedness Amount by wire transfer sole member of immediately available funds the Company and the Seller shall cease to be a member of the accounts and in the amounts specified on the Closing CertificateCompany;
(Biii) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds deliver to the accounts and in OpCo Buyer the amounts specified on Escrow Agreement, duly executed by the Closing CertificateSeller;
(iv) deliver to the Rollover Sellers PropCo Buyer the Stock Consideration fixed asset ledger of the Company and each Company Subsidiary as of the last day of the most recent calendar month prior to the Closing prepared in the amounts allocated among the Rollover Sellers as set forth accordance with GAAP in the Distribution Scheduleall material respects;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amountPropCo Buyer all agreements, including any interest documents, instruments or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds certificates required to accounts designated be delivered by the Escrow Agent, Seller at or prior to be held for the purpose Closing pursuant to the Section 3.03 of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Real Estate Purchase Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration PropCo Buyer a certificate of Seller’s chief financial officer (or other executive vested with similar duties) in the amounts allocated among the Optionholders as set forth in the Distribution Scheduleform of Exhibit D; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) the Ancillary Documents and Buyers all other agreements, documents, instruments or certificates required to be delivered by such the Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 7.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. At the ------------------------------------------- Closing:
(a) At Lyondell and the Closing, Buyer shall:
Lyondell Selling Subsidiaries shall deliver to Purchaser and the Purchaser Designees (i) deliver such appropriately executed deeds (in recordable form), bills of sale, assignments, local asset transfer agreements and other instruments of transfer relating to the Paying Agent:
(A) on behalf of the SellersAcquired Assets in form and substance reasonably satisfactory to Purchaser and its counsel, the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds to the account designated by the Paying Agent (the “Closing Date Payment”); and
(B) the Paying Agent Agreement;
(ii) Lyondell shall deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required cause to be delivered by Buyer at or prior to Purchaser certificates representing the Closing pursuant to Section 8.03 of this Agreement; and
(iii) pay, on behalf of the Company or Sellers, the following amounts:
(A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such Seller, free and clear of all EncumbrancesAcquired Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blankproper form for transfer, with all required appropriate transfer tax stamps affixed thereto (orstamps, if any Seller determines that its instrument(s) has been lostany, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit affixed and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) such other documents as Purchaser or its counsel may reasonably request to demonstrate satisfaction of the Ancillary Documents conditions and compliance with the covenants set forth in this Agreement including (x) fully executed originals, or to the extent such originals cannot be found after reasonable efforts, certified copies of the Real Property Leases and agreements listed in Schedule 1.02(a)(i) and (y) all other agreementsnecessary consents to the transfer of the Real Property Leases as may be required from any third parties, documentsincluding the landlords of Leased Properties pursuant to the Real Property Leases. Purchaser may obtain title insurance for its own account and Lyondell will cooperate with respect thereto so long as such cooperation will not result in any increased liability or material cost to Lyondell.
(b) Purchaser and the Purchaser Designees shall deliver to Lyondell and the Lyondell Selling Subsidiaries (i) payment, instruments or certificates required by wire transfer to a bank account designated in writing by Lyondell (such designation to be delivered by such Seller or Optionholder made at or least five Business Days prior to the Closing pursuant Date), immediately available funds in an amount equal to Section 8.02 the Estimated Polyols Business Purchase Price, (ii) such appropriately executed local asset transfer agreements, assumption agreements and other instruments of assumption providing for the assumption of the Assumed Liabilities in form and substance reasonably satisfactory to Lyondell and its counsel and (iii) such other documents as Lyondell or its counsel may reasonably request to demonstrate satisfaction of the conditions and compliance with the covenants set forth in this Agreement.
(c) To the extent any transaction to be effected at the Closing or thereafter with respect to any Polyols Business Unit involves a payment of part of the Polyols Business Purchase Price in a currency other than U.S. dollars, the amount of such foreign currency paid with respect to such transaction shall be determined by reference to the applicable U.S. dollar amount for such Polyols Business Unit set forth in Schedule 2.04 multiplied by the mid-range exchange rate as of the date of such transaction as published in the Wall Street Journal, Northeastern Edition.
Appears in 1 contract
Samples: Master Asset and Stock Purchase Agreement (Lyondell Chemical Co)
Transactions to be Effected at the Closing. (a) At the Closing, the Buyer shallwill:
(i) deliver pay to Oak by wire transfer of immediately available funds in accordance with the instructions set forth under the heading “Payment Instructions” opposite Oak’s name on the Seller Spreadsheet an amount equal to the Paying Agent:Oak Closing Date Consideration;
(Aii) pay to each Class A Common Unit Holder by wire transfer of immediately available funds in accordance with the instructions set forth under the heading “Payment Instructions” opposite such Class A Common Unit Holder’s name on behalf the Seller Spreadsheet an amount equal to such Class A Common Unit Holder’s Closing Date Consideration;
(iii) pay to each Class B Common Unit Holder by wire transfer of immediately available funds in accordance with the Sellersinstructions set forth under the heading “Payment Instructions” opposite such Class B Common Unit Holder’s name on the Seller Spreadsheet an amount equal to such Class B Common Unit Holder’s Closing Date Consideration;
(iv) pay, or cause the Cash Consideration plus Company to pay, in accordance with the Estimated Closing Cash less written instructions provided by the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense AmountCompany, by wire transfer of immediately available funds funds, the Indebtedness of the Acquired Companies as of the Closing Date as specified in the Statement of Indebtedness and Transaction Expenses delivered to the account designated Buyer prior to Closing pursuant to Section 2.2(b)(i)B;
(v) pay, or cause the Company to pay, in accordance with the written instructions provided by the Paying Agent Company, by wire transfer of immediately available funds, those Sellers’ Transaction Expenses specified in the Statement of Indebtedness and Transaction Expenses delivered to the Buyer prior to Closing pursuant to Section 2.2(b)(i)B;
(vi) deliver to Oak the “Oak Indemnity Escrow Agreement, duly executed by the Buyer;
(vii) deliver to the Representative the Non-Oak Sellers Indemnity Escrow Agreement, duly executed by the Buyer;
(viii) deposit, or cause the Company to deposit, the Oak Indemnity Escrow Amount and the Non-Oak Sellers Indemnity Escrow Amount with the Escrow Agent;
(ix) deliver to the Sellers an executed copy of the Closing Date Payment”Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units); and
(B) the Paying Agent Agreement;
(iix) deliver to Sellers the Ancillary Documents and Representative all other agreements, documents, instruments or certificates required to be delivered by the Buyer at or prior to the Closing pursuant to this Agreement (including Section 8.03 of this Agreement; and
(iii) pay, on behalf of the Company or Sellers, the following amounts:
(A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d8.3 hereof);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall Oak will deliver to the Buyer:
(i) a certificate or certificates representing the Oak Shares duly endorsed or accompanied by stock certificates evidencing powers duly endorsed in blank and all other documents and instruments necessary to vest in the Shares owned by such SellerBuyer all of Oak’s right, title and interest in and to the Oak Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s))Liens;
(ii) original the Books and Records of Oak Blocker; and
(iii) an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units).
(c) At the Closing, each Class A Common Unit Holder will deliver to the Buyer an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units and each Class A Common Unit Holder as withdrawing as a member of Parent) and all other documentation and instruments evidencing necessary to vest in the Warrants held by Buyer all of such SellerClass A Common Unit Holder’s right, title and interest in to the Class A Common Units, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s))Liens; and
(iiid) At the Ancillary Documents Closing, each Class B Common Unit Holder will deliver to the Buyer:
(i) an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units and each Class B Unit Holder as withdrawing as a member of Parent) and all other agreementsdocuments and instruments necessary to vest in the Buyer all of such Class B Common Unit Holder’s right, title and interest in and to the Class B Common Units, free and clear of all Liens; and
(ii) all original executed Restricted Unit Agreements with respect to the Class B Common Units set forth opposite such Class B Common Unit Holder’s name on the Seller Spreadsheet, which agreements shall be terminated as of the Effective Time.
(e) At the Closing, each Seller and the Representative, as applicable, will deliver to the Buyer:
(i) all copies of the consents, approvals and notices (if any) listed on Schedule 2.4(e)(i) to this Agreement (collectively, the “Required Consents”) obtained or provided, as the case may be, in form and substance satisfactory to the Buyer;
(ii) evidence satisfactory to the Buyer of the completion of the matters set forth in Section 7.4(b);
(iii) customary pay-off letters or similar acknowledgments of the full discharge and satisfaction of any Indebtedness of Parent or any Subsidiary setting forth the amount owed as of the Closing Date and indicating that upon payment of such amount, such Indebtedness will be discharged in full and all related Liens (other than Permitted Liens) will be released and removed;
(iv) the Non-Oak Sellers Indemnity Escrow Agreement, duly executed by the Representative;
(v) the Oak Indemnity Escrow Agreement, duly executed by the Representative;
(vi) a properly prepared and executed certificate of non-foreign status under Treas. Reg. §1.1445-2(b)(2);
(vii) a properly completed and executed Form W-9 or Form W-8 as applicable;
(viii) the Books and Records of each of the Acquired Companies;
(ix) the resignations, effective as of the Closing, pursuant to Section 7.3;
(x) a copy of (A) the certificate of formation, as amended (or similar incorporation or formation documents), of each Acquired Company, certified by the Secretary of State of the jurisdiction in which each such entity is incorporated or organized, as of a date not earlier than three (3) Business Days prior to the Closing and accompanied by a certificate of the Secretary or Assistant Secretary of each such entity, dated as of the Closing, stating that no amendments have been made to such certificate of formation (or similar incorporation or formation documents) since such date and (B) all other Organizational Documents of each Acquired Company, certified by the Secretary or Assistant Secretary of each such entity;
(xi) good standing certificates for each Acquired Company from the Secretary of State (or other appropriate Person) of the jurisdiction in which each such entity is incorporated or organized and from the Secretary of State (or other appropriate Person) in each other jurisdiction in which such Acquired Company is qualified to do business as a foreign entity, in each case dated as of a date not earlier than five (5) Business Days prior to the Closing; and
(xii) all other documents, instruments or certificates required to be delivered by such Seller or Optionholder the Sellers at or prior to the Closing pursuant to this Agreement (including Section 8.02 8.2 hereof).
(f) At the Closing, Parent will deliver to the Buyer each of this Agreementthe documents, instruments or certificates required to be delivered by Parent at or prior to Closing (including Section 8.2).
(g) At Closing, the Company will deliver to the Buyer the Seller Spreadsheet and each of the other documents, instruments or certificates required to be delivered by the Company at or prior to Closing (including Section 8.2).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall:
(i) deliver to the Paying AgentShareholder Representative:
(A) on behalf of the SellersClosing Date Cash Payment, the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) Amount and the Indemnification Indemnity Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds funds, to an account designated in writing by the Shareholder Representative to Buyer no later than two (2) Business Days prior to the account designated by the Paying Agent (the “Closing Date Payment”(and Shareholder Representative hereby covenants and agrees to, within one (1) Business Day of receipt, remit such payment to Sellers in accordance with each Seller’s Applicable Percentage, unless the Shareholder Representative and the Sellers agree otherwise); and
(B) a copy of the Paying Agent Agreementirrevocable instructions to Buyer’s transfer agent instructing the transfer agent to deliver, on an expedited basis, the Buyer Stock to be issued in satisfaction of the Closing Date Stock Payment in book entry form, with each Seller receiving a portion of such Buyer Stock based on such Seller’s Applicable Percentage;
(iiC) deliver to Sellers the Ancillary Documents and all other agreementsRegistration Rights Agreement, documentsduly executed by Buyer;
(D) the Subscription Agreement, instruments or certificates required to be delivered duly executed by Buyer at or prior to Buyer;
(E) the Closing pursuant to Section 8.03 of this Escrow Agreement, duly executed by Buyer; and
(iiiii) pay, on behalf of the Company Acquired Companies or Sellers, the following amounts:
(A) Debt Like Items of the Acquired Companies payable at Closing per the Estimated Closing Indebtedness Amount Working Capital Statement, by wire transfer of immediately available funds to the accounts and in the amounts specified on in the Estimated Closing Certificate;Working Capital Statement; and
(B) Indebtedness of the Acquired Companies payable at Closing per the Estimated Closing Transaction Expense Amount Working Capital Statement, by wire transfer of immediately available funds to the accounts and in the amounts specified on in the Estimated Closing Certificate;Working Capital Statement; and
(ivC) deliver any Transaction Expenses unpaid at Closing per the Estimated Closing Working Capital Statement, by wire transfer of immediately available funds to the Rollover Sellers the Stock Consideration accounts and in the amounts allocated among the Rollover Sellers as set forth specified in the Distribution Schedule;Estimated Closing Working Capital Statement; and
(viii) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d2.03(d);
(B) the Indemnification Indemnity Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Indemnity Escrow Fund”) by wire transfer of immediately available funds to an account accounts designated by the Escrow Agent, to be held held, for the purpose of securing the indemnification Sellers’ obligations under Article VI and Article VII of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;this Agreement; and
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder Sellers shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such SellerShares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blankblank (the “Stock Powers”), with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s))thereto;
(ii) original instruments evidencing A certificate of the Warrants held by such Sellersecretary or equivalent officer of each Acquired Company, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement a form reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account Buyer, attaching and certifying copies of: (i) the articles of organization/incorporation (or equivalent) of each Acquired Company, as the same have been amended through the Closing Date; (ii) the bylaws (or equivalent) of each Acquired Company, as the same have been amended through the Closing Date; (iii) the resolutions of the board of directors of each Acquired Company authorizing the transactions contemplated by this Agreement and the taking of any lost instrument(sand all actions deemed necessary or advisable to consummate the transactions contemplated herein; (iv) a certificate of existence of each Acquired Company issued by the Secretary of State of the State of Washington, dated within ten (10) Business Days of Closing;
(iii) from each Seller, a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller is not a foreign person within the meaning of Section 1445 of the Code (the “FIRPTA Certificates”);
(iv) resignations of the directors and officers of each Acquired Company pursuant to Section 5.02 (the “Resignations”);
(v) a duly executed Internal Revenue Service Form W-9 from each Seller;
(vi) payoff letters reflecting the amounts and payment instructions necessary to satisfy all outstanding Indebtedness of each Acquired Company as of the Closing Date (the “Payoff Letters”);
(vii) a waiver and release from each Seller, in the form attached hereto as Exhibit E (the “Shareholder Waivers”);
(viii) that certain Amendment to Lease Agreement, dated the date hereof, with respect to the lease by the Company of the premises commonly known as 1705 132nd Avenue NE, Bellevue, Washington, in form and substance satisfactory to Buyer (the “Amendment to Current Lease”);
(ix) that certain Lease Agreement, dated the date hereof, with respect to the lease by the Company of the premises commonly known as 10000 Xxxxxxxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, in form and substance satisfactory to Buyer (the “Future Lease”);
(x) that certain Employment Agreement, in the form attached hereto as Exhibit F (the “Employment Agreement”), dated the date hereof, executed by Wxxxx and the Company with respect to the post-Closing employment of Wxxxx by the Company; and
(iiixi) the Ancillary Documents and all other agreementsEscrow Agreement, documents, instruments or certificates required to be delivered duly executed by such Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 of this AgreementShareholder Representative.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Motion Technologies Inc)
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shallParent shall deliver:
(i) deliver to Paying Agent, for further distribution to the Paying Agent:
Participating Stockholders, an amount in cash equal to (A) on behalf of the SellersClosing Per Share Merger Consideration, the Cash Consideration plus the Estimated Closing Cash less the sum of multiplied by (1B) the Purchase Price Adjustment Escrow Amount, (2) total number of issued and outstanding Company Shares immediately prior to the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense AmountEffective Time, by wire transfer of immediately available funds to an account or accounts designated in the account designated by the Paying Agent (the “Closing Date Payment”); and
(B) the Paying Agent AgreementFunds Flow;
(ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing Escrow Agent, the Escrow Amount pursuant to Section 8.03 of this Agreement; andthe wire instructions provided by the Escrow Agent;
(iii) payto the applicable payees, on behalf of the Company or Sellers, the following amounts:
(A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds pursuant to the accounts allocation and wire instructions provided by Securityholders’ Representative to Parent in the Funds Flow, the Estimated Transaction Expenses; provided, that any amounts specified on contemplated by clause (a) of the definition of Transaction Expenses shall be paid to the Company, and Parent shall thereafter cause the Company to pay such amounts to the intended recipients thereof no later than the first regular payroll date after the Closing Certificate(or such other date as required by the terms of the applicable Benefit Plan pursuant to which such amount is being paid), provided that if the first regularly scheduled payroll is less than three Business Days following the Closing Date, then such amounts shall be paid on next regularly scheduled payroll thereafter;
(Biv) to the holders of outstanding Estimated Closing Transaction Expense Amount Indebtedness set forth on Section 2.07(a)(iv) of the Disclosure Schedule, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver and pursuant to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as wire instructions set forth in the Distribution Scheduleapplicable Payoff Letter delivered pursuant to Section 2.07(b)(v);
(v) deliver to the Escrow Agent:
(A) Securityholders’ Representative, the Purchase Price Adjustment Escrow Securityholders’ Representative Expense Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow this Agreement, the “Purchase Price Adjustment Escrow Securityholders’ Representative Expense Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent), to be held for the purpose of securing funding any expenses of the obligations of Sellers Securityholders’ Representative arising in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance connection with the Escrow Agreementadministration of the Securityholders’ Representative’s duties in this Agreement after the Effective Time, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreementrelevant Ancillary Agreements;
(vi) deliver to the Company, the Option Closing Amount, for delivery further distribution to the Optionholdersintended recipients thereof through its standard payroll procedures in accordance with Section 2.11 (Payroll Process) and in accordance with the terms and conditions of this Agreement;
(vii) to Securityholders’ Representative, the Option Rollover Consideration Escrow Agreement and Paying Agent Agreement, each duly executed by Xxxxxx; 0000-0000-0000.4
(viii) at the Closing, a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Parent and separately of Merger Sub (in form and substance reasonably satisfactory to the amounts allocated among Securityholders’ Representative) certifying the Optionholders as set forth names and signatures of the officers of Xxxxxx and Xxxxxx Sub, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder;
(ix) at the Closing, certificates (in form and substance reasonably satisfactory to the Distribution ScheduleSecurityholders’ Representative) of the Secretary or an Assistant Secretary (or equivalent officer) of Parent and separately of Merger Sub, certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors (or equivalent governing body) of Parent and Merger Sub, respectively, authorizing the execution, delivery and performance of this Agreement and the consummation of the Transactions, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the Transactions; and
(viix) deliver a certificate of good standing, dated not more than ten days prior to the CompanyClosing Date, for payment with respect to each of Parent and Xxxxxx Sub, issued by the Optionholders through payroll, Secretary of State of the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution ScheduleState of Delaware.
(b) At the Closing, each Seller and Optionholder The Company shall deliver or cause to Buyerbe delivered to Parent:
(i) stock certificates evidencing at the Shares owned Closing, resignations effective as of the Closing of each of the directors, officers and managers of the Company and its Subsidiaries, other than those directors, officers and managers notified by such SellerParent to the Securityholders’ Representative not less than three Business Days prior to Closing, free in form and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement substance reasonably acceptable satisfactory to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s))Parent;
(ii) at the Closing, an original instruments evidencing signed statement stating that the Warrants held by such SellerCompany is not and has not been a United States real property holding corporation (as defined in section 897(c)(2) of the Code) during the applicable period specified in Section 897(c) of the Code, free in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by such Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 of this Agreement.1.897-2
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall:
(i) deliver to the Paying AgentSellers:
(A) on behalf of the Sellers, the Estimated Cash Consideration plus in the Estimated Closing Cash less the sum of amounts specified on Annex A hereto (1in proportion to their respective Pro Rata Shares) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds to the account designated by the Paying Agent (the “Closing Date Payment”)Purchase Price Bank Account for each Seller; and
(B) the Paying Agent Agreement;Escrow Agreement duly executed by Buyer.
(ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement; and
(iii) pay, on behalf of the Company or Sellers, the following amounts:
(A) to the Lenders, the amounts necessary to pay off the portion of the Estimated Closing Indebtedness Amount owed to the Lenders by wire transfer of immediately available funds to the accounts and in the amounts specified on in the Closing Certificate;Debt Payoff Letters; and
(B) to the Persons identified in the Invoices, the amounts necessary to pay off the portion of the Estimated Closing Transaction Expense Amount Expenses owed to such Persons by wire transfer of immediately available funds to the accounts and in the amounts specified on in the Closing Certificate;Invoices.
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(viii) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts an account designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX ARTICLE VII and the obligations of Sellers in Section 2.04(d) and Section 7.086.09;
(C) the Retention Bonus Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Retention Bonus Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 2.08;
(viD) the Tax Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Tax Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 6.07;
(E) the PPP Escrow Amount by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 2.07;
(F) the Special Indemnity Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Special Indemnity Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers with respect to Item 3 and Item 4 on Annex F; and
(G) the Escrow Agreement duly executed by Buyer and, subject to the satisfaction of Section 2.03(b)(ii), the Sellers’ Representative.
(iv) deliver to the CompanySellers’ Representative the Sellers’ Representative Expense Fund by wire transfer of immediately available funds to an account designated by the Sellers’ Representative, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; andbe held pursuant to Section 8.01.
(viiv) deliver to the Companyeach Key Employee, for payment an employment agreement in form and substance reasonably acceptable to the Optionholders through payrollBuyer and each Key Employee (each, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedulean “Employment Agreement”), duly executed by Buyer.
(b) At the Closing, each Seller and Optionholder the Sellers’ Representative shall deliver to Buyer:
(i) stock certificates evidencing written assignments of the Shares owned Membership Interests held by such Sellereach Seller to Buyer, free in a form mutually agreed by the Sellers’ Representative and clear of all EncumbrancesBuyer (the “Assignments”), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s))each Seller;
(ii) original instruments evidencing the Warrants held Escrow Agreement duly executed by such Sellerthe Sellers’ Representative;
(iii) written resignations, free in a form mutually agreed by the Sellers’ Representative and clear Buyer, effective as of all Encumbrancesthe Closing Date, of each manager and officer of the Company (solely with respect to their officer and manager designations but not from employment by the Company) as the Buyer may have requested in writing prior to the Closing Date, duly endorsed executed by each such manager or officer;
(iv) an employment agreement in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit form and indemnification agreement substance reasonably acceptable to Buyer and each Key Employee (each, an “Employment Agreement”), duly executed by each Key Employee and the Company;
(v) a certificate of the secretary, assistant secretary or manager of the Company dated as of the Closing Date and attaching (A) the Company’s Articles of Organization and all amendments thereto, certified by the State Corporation Commission of the Commonwealth of Virginia not more than seven (7) Business Days prior to indemnify Buyer against the Closing Date; (B) the Operating Agreement; (C) a certificate of good standing of the Company certified by the State Corporation Commission of the Commonwealth of Virginia and each other jurisdiction in which the Company is qualified to do business issued not more than seven (7) Business Days prior to the Closing Date; (D) all resolutions of the board of managers of the Company authorizing and approving this Agreement and the Ancillary Documents and the Transactions; and (E) incumbency and signatures of the officers or manager(s) of the Company executing this Agreement or any claim Ancillary Document;
(vi) evidence, in form and substance reasonably acceptable to Buyer, that may those notices required to be given and Filings required to be made by any Seller or the Company in connection with the execution, delivery, and performance of this Agreement or the Ancillary Documents and the consummation and performance of the Transactions that are or are required to be set forth on account Section 3.04 of the Disclosure Schedules have been duly given to or made with the appropriate Persons, and copies, in form and substance reasonably acceptable to Buyer, of those Consents required to be obtained by any lost instrument(sSeller or the Company in connection with the execution, delivery, and performance of this Agreement or the Ancillary Documents and the consummation and performance of the Transactions that are or are required to be set forth on Section 3.04 of the Disclosure Schedules, duly executed by the appropriate Persons;
(vii) payoff letters (the “Debt Payoff Letters”), in form and substance reasonably acceptable to Buyer, duly executed by the Lenders, providing for, upon the payment of all Closing Indebtedness owed by the Company to such Lender at the Closing, the termination of all Encumbrances held by such Lender with respect to the Assets of the Company (including authorization of the Company and the Company’s Representatives to file all necessary UCC-3 termination statements and other necessary documentation in connection with the termination of such Encumbrances);
(viii) invoices (the “Invoices”) from the applicable Persons, dated no more than two (2) Business Days prior to the Closing Date, with respect to all Closing Transaction Expenses due and payable to such applicable Persons as of the Closing Date; and
(iiiix) evidence, in form and substance reasonably acceptable to Buyer, that the Ancillary Documents Company has purchased “tail” policies (the “Tail Policies”) that (A) provide extended reporting period coverage under those insurance policies of the Company set forth on Annex D covering claims asserted within six (6) years after the Closing Date arising from action, event, development, or occurrence that occurred at or before the Closing (including consummation and performance of the Transactions) and (B) name as insureds thereunder all other agreementscurrent and former directors, documentsofficers, instruments or certificates required and employees of the Company;
(x) evidence, in form and substance reasonably acceptable to be delivered Buyer, that the Company has terminated those Contracts, Benefit Plans, and Insurance Policies set forth on Annex E, if any, in each case, in accordance with the terms of such Contract, Benefit Plans, and Insurance Policies;
(xi) a certificate executed by each Seller, in form and substance reasonably acceptable to Buyer, duly completed pursuant to Treasury Regulation Section 1.1445-2(b) and Code Section 1446(f)(2) certifying that such Seller is not a foreign person;
(xii) an electronic copy (e.g. CD-ROM or Optionholder at or USB drive) of the Data Room as it exists immediately prior to the Closing pursuant to Section 8.02 of this AgreementClosing; and
(xiii) the PPP Escrow Agreement duly executed by the Company and the PPP Lender.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Computer Programs & Systems Inc)
Transactions to be Effected at the Closing. (a) At the Closing, but immediately prior to the consummation of the Membership Interests Purchase and in exchange for the Real Estate Purchase Price, the Company and the PropCo Buyer (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, and thereby effect the Real Estate Purchase, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to closing set forth in Article V thereof); provided, however, that if the PropCo Buyer assigns the Real Estate Purchase Agreement to a designee pursuant to the terms of the Real Estate Purchase Agreement, the PropCo Buyer shall guarantee all of the obligations of its designee thereunder. The Membership Interests Purchase, the Real Estate Purchase and the other transactions contemplated by this Agreement and the Real Estate Purchase Agreement are referred to herein as the “Transactions”.
(b) The Company shall (i) conduct a physical counting of the Cage Cash and Kiosk Cash located on the Company Real Property and (ii) obtain an account balance statement from the Company’s banks showing the amount of Cash in the Company’s bank accounts, and the amount of the Cash Deduction, in each case as of the Reference Time (the “Cash Count”). The aggregate amount of Cash and the Cash Deduction determined in accordance with the preceding clauses (i) and (ii), absent any dispute from the OpCo Buyer’s representatives in connection with the Cash Count, shall be included in the determination of the amount of Closing Date Company Cash, subject to any adjustment pursuant to Section 2.06. To the extent permitted by applicable Gaming Authorities, the OpCo Buyer may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date without limitation of either the OpCo Buyer’s or the Seller’s rights under Section 2.06; provided, however, that such representatives shall not interfere with the Company’s conduct of the Cash Count.
(c) At the Closing, each of the Buyers shall:
(i) deliver or cause to the Paying Agent:
(A) be delivered on behalf of the Sellers, Company the Cash Consideration plus amount payable to each counterparty or holder (or agent on behalf of such counterparty or holder) of Indebtedness identified on Schedule 2.04(c)(i) to the Estimated Closing Cash less extent such Indebtedness remains outstanding following the sum application of (1) the proceeds of the Real Estate Purchase Price Adjustment Escrow Amount(the “Payoff Indebtedness”) in order to fully discharge, repay or prepay such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto (2other than contingent indemnification liabilities), as specified in the Debt Payoff Letters and in accordance with this Agreement;
(ii) deliver or cause to be delivered on behalf of the Indemnification Escrow AmountCompany the amount payable to each Person who is owed a portion of the Transaction Expenses (other than Transaction Expenses that are to be borne by the Buyers, as provided in this Agreement), as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Option Cashout AmountClosing;
(iii) deliver or cause to be delivered an amount equal to the Escrow Amount by wire transfer of immediately available funds into an account designated by the Escrow Agent (the “Escrow Account”), which shall be held and distributed in accordance with the terms of the Escrow Agreement to satisfy any adjustments to the Membership Interests Purchase Price in favor of the OpCo Buyer pursuant to Section 2.06;
(4iv) deliver to the Estimated Seller the Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, Cash Consideration by wire transfer of immediately available funds to the a bank account designated or accounts and in such proportions as specified by the Paying Agent Seller in writing to the Buyers at least three (3) Business Days prior to the “Closing Date Payment”)Closing; and
(B) the Paying Agent Agreement;
(iiv) deliver to Sellers the Ancillary Documents and Seller all other agreements, documents, instruments or certificates required to be delivered by Buyer the Buyers at or prior to the Closing pursuant to Section 8.03 7.03 of this Agreement.
(d) At the Closing, the OpCo Buyer shall additionally:
(i) deliver to the Seller and the Company a joinder to the Company Operating Agreement, duly executed by the OpCo Buyer and a counterpart signature page to the Assignment Agreement;
(ii) deliver to the Seller the Escrow Agreement, duly executed by the OpCo Buyer; and
(iii) paydeliver to the Seller amendments to the St. Mary’s Sublease and the Gap Building Lease, on behalf substantially in the form attached to the Real Estate Purchase Agreement as Exhibits H-1 and H-2, duly executed and acknowledged by Greektown.
(e) At the Closing, the Seller shall:
(i) deliver to the Buyers a certificate in compliance with Treasury Regulations Section 1.1445-2, certifying that the Transactions are exempt from withholding under Section 1445 of the Code, provided, that the Buyers’ sole recourse in the event that the Seller fails to deliver such certificate shall be to make an appropriate withholding under Section 1445 of the Code;
(ii) deliver to the OpCo Buyer an assignment agreement, in form and substance reasonably acceptable to the OpCo Buyer (the “Assignment Agreement”), executed by the Seller, pursuant to which (x) the Seller shall transfer and assign to the OpCo Buyer all of the Membership Interests and (y) concurrently with the Closing and the execution of a joinder to the Company Operating Agreement executed by the OpCo Buyer, the board of managers of the Company or Sellers, shall admit the following amounts:
(A) OpCo Buyer as the Estimated Closing Indebtedness Amount by wire transfer sole member of immediately available funds the Company and the Seller shall cease to be a member of the accounts and in the amounts specified on the Closing CertificateCompany;
(Biii) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds deliver to the accounts and in OpCo Buyer the amounts specified on Escrow Agreement, duly executed by the Closing CertificateSeller;
(iv) deliver to the Rollover Sellers PropCo Buyer the Stock Consideration fixed asset ledger of the Company and each Company Subsidiary as of the last day of the most recent calendar month prior to the Closing prepared in the amounts allocated among the Rollover Sellers as set forth accordance with GAAP in the Distribution Scheduleall material respects;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amountPropCo Buyer all agreements, including any interest documents, instruments or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds certificates required to accounts designated be delivered by the Escrow Agent, Seller at or prior to be held for the purpose Closing pursuant to the Section 3.03 of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Real Estate Purchase Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration PropCo Buyer a certificate of Seller’s chief financial officer (or other executive vested with similar duties) in the amounts allocated among the Optionholders as set forth in the Distribution Scheduleform of Exhibit D; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) the Ancillary Documents and Buyers all other agreements, documents, instruments or certificates required to be delivered by such the Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 7.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shallthe Parties shall unconditionally perform the following transactions, which shall become effective upon Closing unless otherwise indicated in this Section 2.02:
(a) The Existing Shareholder, the Company and the Investor shall enter into a shareholders agreement substantially in the form of Schedule 2.02(b) (the “Shareholders Agreement”);
(b) The Existing Shareholder shall appoint or elect or cause to be appointed to the board of directors of the Company (the “Board”) (i) deliver up to three (3) individuals named by the Existing Shareholder and (ii) if and to the Paying Agent:
(A) on behalf of extent requested by Investor in writing not later than the Sellersdate hereof, the Cash Consideration plus the Estimated Closing Cash less the sum of one (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, individual identified by wire transfer of immediately available funds Investor to the account designated by Existing Shareholder in writing, with such appointment being effective as of the Paying Agent (the “Closing Date Payment”)Closing; and
(Bc) Subject to Section 2.02(d), within ten (10) Business Days after the Paying Agent Agreement;Closing (the “Interim Period”), the Company and the Investor shall execute and deliver, or cause to be executed and delivered, a subscription document substantially in the form set forth in Schedule 2.02(e) (the “Subscription Document”), and the Investor shall become unconditionally obligated to pay the Subscription Price and the Company shall become unconditionally obligated to deliver the Subscription Shares simultaneously therewith and to register the Subscription Shares in its shareholders registry.
(d) During the Interim Period, the Warrantors undertake (i) to cause the Company to be operated in the usual and ordinary course, (ii) deliver to Sellers not issue any dividends without the Ancillary Documents and all other agreementsInvestor’s consent, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement; and
(iii) pay, on behalf to not decide any matter to which Section 4.02(a) of the Shareholders Agreement (Voting Power) applies without the Investor’s consent and (ii) notify the Investor if the Warrantors Disclosure Schedule was materially inaccurate promptly after becoming aware of such inaccuracy. In the event that the Company is not operated in the usual and ordinary course of business, or Sellersa disclosure set forth in the Warrantors Disclosure Schedule was materially inaccurate when made, LGI shall have the right to notify the Warrantors of its intent to renegotiate the terms of this Agreement to address such issues. Upon such notice, the following amounts:
Parties shall discuss and negotiate the matter in good faith and, endeavor as soon as reasonably possible but in no event longer than thirty (A30) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds days, to the accounts and in the amounts specified mutually agree on the Closing Certificate;
(B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers a settlement thereof, failing which any Party may terminate this Agreement as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule8.05.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by such Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 of this Agreement.
Appears in 1 contract
Samples: Subscription Agreement (GeoPark LTD)
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shallthe following transactions shall be effected by the parties:
(ia) the Stockholders shall deliver to the Paying Agent:
(A) on behalf of Parent Certificates representing the Sellers, the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds to the account designated by the Paying Agent (the “Closing Date Payment”); and
(B) the Paying Agent Agreement;
(ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement; and
(iii) pay, on behalf of the Company or Sellers, the following amounts:
(A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Shares owned by such Seller, free and clear of all EncumbrancesShares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blankproper form for transfer, with all required appropriate transfer tax stamps affixed thereto (orTax stamps, if any Seller determines that its instrument(s) has been lostany, stolen or destroyedaffixed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account the letter of any lost instrument(s)); and
(iii) the Ancillary Documents and all other agreements, documents, instruments or certificates transmittal described in Section 3.3 required to be delivered by each Stockholder prior to payment of any merger consideration by the Parent hereunder;
(b) upon receipt of the information and documentation referenced in Section 4.2(a) above for a Stockholder, the Parent shall deliver to such Seller or Optionholder Stockholder sufficient cash, shares of Parent’s Stock and Warrants to make all deliveries to such Stockholder pursuant to Section 3.2(a)(i). The cash payment described herein shall be by wire transfer of immediately available funds to a bank account designated in writing by each such Stockholder (such designation to be made at or least two (2) Business Days prior to the Closing pursuant Date);
(c) the Company shall pay to each Optionholder (other than in respect of a Roll Over Option), by wire transfer of immediately available funds, check or direct deposit, an amount equal to such Optionholder’s portion of the Aggregate Cash Option Consideration in accordance with Section 8.02 3.7 herein plus any amount described in Section 3.7(d)(ii); provided that with respect to each Option, the amount paid to an Optionholder shall be reduced by all applicable withholding amounts, if any, with respect to the exercise of this Agreementthe underlying Option in accordance with Section 3.7 herein and Parent shall issue the Roll Over Options to the Roll Over Optionholders;
(d) the Parent shall deliver to the Company an amount equal to the Aggregate Cash Option Consideration, payable by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing);
(e) the Parent shall deliver to the Bank on behalf of the Company an amount equal to the Credit Agreements Payoff Amount;
(f) the Parent shall deliver to the Company by wire transfer of immediately available funds to such bank accounts of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount sufficient to pay the Preferred Liquidation Amount;
(g) the Company shall pay the Preferred Liquidation Amount to the holders of the Series A Preferred Stock;
(h) the Parent shall deliver to the Company by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount sufficient to pay the Company Expenses;
(i) the Company shall pay the Company Expenses;
(j) the Parent shall deliver to the Escrow Agent the Escrow Amount consisting of the shares of Parent’s Stock to be held in the Escrow Fund; and
(k) the Parent shall issue to each Warrantholder the number of Warrants set forth opposite such Warrantholder’s name on Annex D attached hereto.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shallshall take all actions to:
(i) deliver consummate each Equity Financing in accordance with the Equity Financing Letter for such Equity Financing;
(ii) pursuant to the Paying Agent:
ROW Acquisition (A) on behalf of cause the Sellers, Subsidiary Buyer to pay to the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense AmountROW Seller, by wire transfer of immediately available funds to the account account(s) designated in writing by the Paying Agent Seller Parent (the “Closing Date Payment”); and
(B) the Paying Agent Agreement;
(ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required such designation to be delivered by to Buyer at or least two (2) Business Days prior to the Closing pursuant Date), an amount equal to Section 8.03 the ROW Estimated Closing Cash Consideration and (B) convey and deliver to the ROW Seller book-entry interests representing the Stock Consideration, together with duly executed instruments of this Agreement; andissuance, sale and delivery in respect thereof, in form and substance reasonably acceptable to Seller Parent, evidencing the issuance, sale and delivery of the Stock Consideration;
(iii) paypursuant to the Irish Subscription, on behalf of cause the Company or Sellers, the following amounts:
Subsidiary Buyer to (A) subscribe for the Irish New Equity Interests at an aggregate subscription consideration equal to the amount of the Irish Estimated Closing Indebtedness Amount Cash Consideration and (B) pay to the Irish Acquired Company, by wire transfer of immediately available funds to the accounts and account(s) designated in the amounts specified on writing by Seller Parent at least two (2) Business Days prior to the Closing CertificateDate, an amount equal to the Irish Estimated Closing Cash Consideration, in satisfaction of such subscription consideration;
(Biv) cause each of the Amended and Restated Memorandum of Association and the Amended and Restated Articles of Association to be adopted and become effective, including by delivering any other materials and making any other filings, recordings or publications required under applicable Law to effect the foregoing;
(v) deliver to Seller Parent its duly executed counterpart to the Transition Services Agreement, the Reverse Transition Services Agreement (if applicable), the Employee Matters Agreement and the Amended and Restated Shareholders’ Agreement; and
(vi) take the actions set forth on Annex C under the heading “Closing Indian Actions”.
(b) At the Closing, upon receipt of the Estimated Closing Transaction Expense Amount Cash Consideration and the Stock Consideration, Seller Parent shall take all actions to:
(i) pursuant to the ROW Acquisition, cause the ROW Seller to convey and deliver to each Applicable Buyer, in accordance with the Consideration Allocation Schedule and Section 1.03, duly executed instruments of assignment, in form and substance reasonably acceptable to Buyer, evidencing the sale, assignment, transfer, conveyance and delivery of such Applicable Buyer’s Applicable Acquired ROW Equity Interests;
(ii) pursuant to the Irish Subscription, cause the Irish Acquired Company to allot and issue the Irish New Equity Interests to the Subsidiary Buyer, credited as fully paid against the subscription consideration, together with duly executed share certificates in respect thereof, in form and substance reasonably acceptable to Buyer, and to record the Subsidiary Buyer as the holder of the Irish New Equity Interests in the register of members of the Irish Acquired Company, evidencing the allotment, issuance and delivery of the Irish New Equity Interests;
(iii) pursuant to the Irish Redemption, immediately following completion of the Irish Subscription, cause the Irish Acquired Company to (A) redeem and cancel the Irish Redemption Equity Interests at an aggregate redemption price equal to the amount of the Irish Estimated Closing Cash Consideration and (B) pay to the Irish Seller, by wire transfer of immediately available funds to the accounts and account(s) designated in the amounts specified on writing by Seller Parent at least two (2) Business Days prior to the Closing Certificate;Date and out of the proceeds of the Irish Subscription, an amount equal to the Irish Estimated Closing Cash Consideration in satisfaction of such redemption price; and
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
Buyer (A) its duly executed counterpart to the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Transition Services Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by Reverse Transition Services Agreement (if applicable), the Escrow AgentEmployee Matters Agreement and the Amended and Restated Shareholders’ Agreement, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon a duly executed Internal Revenue Service Form W-9 of ROW Seller and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Companya certificate certifying that, for delivery to the OptionholdersU.S. federal income tax purposes, the Option Rollover Consideration in Irish New Equity Interests (and the amounts allocated among assets held by the Optionholders Irish Acquired Company as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At of the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing are not “United States real property interests” within the Shares owned by such Seller, free and clear meaning of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments Section 897 of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(ii) original instruments evidencing the Warrants held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (or, if any Seller determines that its instrument(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost instrument(s)); and
(iii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by such Seller or Optionholder at or prior to the Closing pursuant to Section 8.02 of this AgreementCode.
Appears in 1 contract
Samples: Transaction Agreement (Viatris Inc)
