Certain Deliveries. In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing: (a) Seller shall deliver to Buyer: (i) a b▇▇▇ of sale for all of the tangible Purchased Assets in the form of Exhibit D (the "B▇▇▇ of Sale") executed by Seller; ------------ (ii) an assignment of all of the Purchased Assets that are intangible personal property in the form of Exhibit E, which assignment shall also contain Buyer's undertaking and assumption of the Assumed Liabilities (the "Assignment and Assumption Agreement") executed by Seller; (iii) a Tolling Agreement, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit F (the "Tolling Agreement") executed by Seller; ----------------- (iv) a Non-Compete Agreement, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit G (the "Non-Compete Agreement") executed by each of the Seller, Chinook Services LLC, Chinook LLC, D▇▇▇ ▇. ▇▇▇▇, J▇▇▇ ▇. ▇▇▇▇▇▇▇ and R▇▇▇▇▇ ▇. ▇▇▇▇▇; (v) a Transition Services Agreement, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit H (the "Transition Services Agreement") executed by Seller; --------------------------------- (vi) the Consent Agreement executed by Seller; (vii) the Escrow Agreement executed by Seller; and (viii) a certificate pursuant to Section 6 of the Ontario Retail Sales Tax Act. (b) Buyer shall deliver to Seller: (i) the Purchase Price (less the Purchased Inventory Escrow Amount to be deposited by Buyer with the Escrow Agent at Closing) by wire transfer to an account specified by Seller in a writing delivered to Buyer prior to the Closing Date; (ii) the Assignment and Assumption Agreement executed by Buyer; (iii) the Tolling Agreement executed by Buyer; (iv) the Non-Compete Agreements executed by Buyer; (v) the Transition Services Agreement executed by Buyer; (vi) the Consent Agreement executed by Buyer; (vii) the Escrow Agreement executed by Buyer; and (viii) the promissory note described in Section 2.3(a).
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Certain Deliveries. In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing:
(a) Seller At the Closing, Parent shall deliver deliver, or cause to Buyerbe delivered:
(i) a b▇▇▇ of sale for all of to the tangible Purchased Assets Sellers, the Closing Date Cash Consideration, in accordance with the form of Exhibit D (amounts set forth on the "B▇▇▇ of Sale") executed by Seller; ------------Consideration Allocation Schedule;
(ii) an assignment of all of to the Purchased Assets that are intangible personal property in Escrow Agent for deposit into the form of Exhibit EAdjustment Escrow Fund, which assignment shall also contain Buyer's undertaking and assumption of the Assumed Liabilities (the "Assignment and Assumption Agreement") executed by SellerAdjustment Escrow Amount;
(iii) a Tolling Agreement, dated as on behalf of the Closing DateGroup Companies, with Buyer the amount payable to each counterparty or a designated Affiliate holder of Buyer in substantially Indebtedness identified on Schedule 2.9(a)(iii) of the form of Exhibit F Disclosure Letter (the "Tolling “Payoff Indebtedness”) pursuant to the applicable Debt Payoff Letter in order to fully discharge such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Group Companies and any of their respective Affiliates related thereto, as specified in the Debt Payoff Letters and in accordance with this Agreement") executed by Seller; -----------------;
(iv) a Non-Compete Agreement, dated as on behalf of the Closing DateGroup Companies, with Buyer or the amount payable to each Person who is owed a designated Affiliate of Buyer in substantially the form of Exhibit G (the "Non-Compete Agreement") executed by each portion of the SellerEstimated Transaction Expenses, Chinook Services LLC, Chinook LLC, D▇▇▇ ▇. ▇▇▇▇, J▇▇▇ ▇. ▇▇▇▇▇▇▇ as specified in the Transaction Expenses Payoff Instructions and R▇▇▇▇▇ ▇. ▇▇▇▇▇in accordance with this Agreement;
(v) a Transition Services to the Seller Representative, an executed counterpart to the Escrow Agreement, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit H (the "Transition Services Agreement") executed by Seller; ---------------------------------;
(vi) to the Consent Agreement GA Stockholders and the GBOS Stockholders entitled to Stock Consideration, a copy of the A&R Parent Stockholders Agreement, duly executed by SellerParent and SSGLP;
(vii) to the Escrow Agreement GALP Partners and GBOS Members entitled to Unit Consideration, a copy of the Class C Exchange Agreement, the A&R SSGLP LPA and A&R RRA, duly executed by SellerSSGLP and Parent;
(viii) to the GALP Partners and GBOS Members, the SSGLP Units set forth on the Consideration Allocation Schedule plus any additional SSGLP Units or cash that Parent elects to pay to such GALP Partners and GBOS Members in accordance with Section 2.2;
(ix) to the GA Stockholders and the GBOS Stockholders, the shares of Parent Class A Common Stock set forth on the Consideration Allocation Schedule, plus any additional shares of Parent Class A Common Stock that Parent elects to pay to such GA Stockholders and the GBOS Stockholders in accordance with Section 2.7, less the Specified Bonus;
(x) to the Seller Representative, for deposit into the Expense Fund, the Expense Fund Amount; and
(viiixi) a certificate pursuant to Section 6 the applicable recipient, the amount of the Ontario Retail Sales Tax ActSpecified Bonus in accordance with the amount set forth in the Consideration Allocation Schedule.
(b) Buyer At or prior to the Closing, the Group Companies shall deliver to Sellerdeliver:
(i) to Parent, all third party consents and estoppel certificates set forth on Schedule 2.9(b)(i) of the Purchase Price Disclosure Letter, in form and substance reasonably satisfactory to Parent;
(less ii) to Parent, letters of resignation from the Purchased Inventory Escrow Amount to be deposited officers or directors of the Group Companies requested by Buyer with the Escrow Agent Parent in writing at Closingleast five (5) by wire transfer to an account specified by Seller in a writing delivered to Buyer Business Days prior to the Closing Date;
(ii) the Assignment , in form and Assumption Agreement executed by Buyersubstance reasonably satisfactory to Parent;
(iii) the Tolling Agreement to Parent, a payoff letter duly executed by Buyereach holder of Payoff Indebtedness, together with customary guaranty and lien releases relating to such Payoff Indebtedness, each in form and substance reasonably satisfactory to Parent (each such payoff letter, a “Debt Payoff Letter”);
(iv) to Parent, a certificate from each of GA Inc. and GBOS Inc. certifying that it is not, and has not been, a United States real property holding corporation, within the Non-Compete Agreements executed by Buyermeaning of Section 897 of the Code, during the applicable period specified in Section 897(c)(1)(a)(ii) of the Code, which certificate complies with the requirements of Section 1445 of the Code;
(v) the Transition Services Agreement to Parent, a duly executed by Buyerand properly completed IRS Form W-9 from each of GA Inc, GBOS Inc., and each Seller;
(vi) to Parent, a duly executed questionnaire, in form and substance reasonably acceptable to Parent, from each Seller receiving a portion of the Consent Agreement executed by BuyerStock Consideration or Unit Consideration affirming his, her or its status as an accredited investor;
(vii) to Parent, certificates representing the Escrow Agreement GA Shares and the GBOS Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate transfer stamps, if any, affixed;
(viii) to SSGLP, membership interest assignment agreements, or other instruments of transfer evidencing the transfer and assignment of all GALP Interests and GBOS Units to SSGLP, each in form and substance reasonably acceptable to Parent;
(ix) to Parent and SSGLP, a copy of the A&R Parent Stockholders Agreement, duly executed by Buyereach GA Stockholder and GBOS Stockholder entitled to Stock Consideration;
(x) to SSGLP, copies of the A&R SSGLP LPA, Class C Exchange Agreement and A&R RRA, each duly executed by each GBOS Member and each GALP Partner entitled to any portion of the Unit Consideration, and joinders to the Tax Receivable Agreement;
(xi) to SSGLP, a copy of the Class C Exchange Agreement, duly executed by each GBOS Member and each GALP Partner entitled to any portion of the Unit Consideration;
(xii) to Parent, evidence in form and substance satisfactory to Parent that, except as set forth on Schedule 2.9(b)(xii) of the Disclosure Letter, all accounts or contracts between any Group Company, on the one hand, and any Seller and its respective Related Parties, on the other hand, has been cancelled without any consideration or further liability to any party, effective as of immediately prior to the Closing; and
(viiixiii) to Parent, copies of the Client Consents (other than any Client Consents provided by so-called implied or negative consent) which evidence the satisfaction of the condition set forth in Section 6.3(f).
(c) All payments hereunder shall be made by wire transfer of immediately available funds in United States dollars to such account designated to the payor by the payee at least two Business Days prior to the applicable payment date.
(d) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of the Parent Class A Common Stock shall be issued pursuant to this Agreement, no dividends or other distributions with respect to the Parent Class A Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any such fractional share, Parent shall pay to each former GA Stockholder or GBOS Stockholder who otherwise would be entitled to receive a fractional share of the Parent Class A Common Stock an amount in cash (without interest) determined by multiplying (i) the promissory note described fraction of a share of the Parent Class A Common Stock which such holder would otherwise be entitled to receive hereunder by (ii) the Transaction Parent Stock Price. The parties acknowledge that payment of cash in Section 2.3(a)lieu of fractional shares is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing fractional shares and does not represent separately bargained for consideration.
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Certain Deliveries. In addition to any other documents to be delivered under other provisions Concurrently with the execution and delivery of this AgreementAmendment, at the ClosingCompany is delivering to LLCP, or is causing the delivery to LLCP of, each of the following documents:
(a) Seller shall deliver An Amendment to Buyer:
the Security Agreement (i) a b▇▇▇ of sale for all of the tangible Purchased Assets Company), in the form of Exhibit D (the "B▇▇▇ of Sale") executed by Seller; ------------
(ii) an assignment of all of the Purchased Assets that are intangible personal property in the form of Exhibit E, which assignment shall also contain Buyer's undertaking and assumption of the Assumed Liabilities (the "Assignment and Assumption Agreement") executed by Seller;
(iii) a Tolling Agreementsubstance satisfactory to LLCP, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit F (the "Tolling Agreement") Fourth Amendment Effective Date and duly executed by Seller; -----------------the Company;
(ivb) a Non-Compete AgreementAn Amendment to the Security Agreement (Subsidiary), in form and substance satisfactory to LLCP, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit G (the "Non-Compete Agreement") Fourth Amendment Effective Date and duly executed by each of the Seller, Chinook Services LLC, Chinook LLC, D▇▇▇ ▇. ▇▇▇▇, J▇▇▇ ▇. ▇▇▇▇▇▇▇ and R▇▇▇▇▇ ▇. ▇▇▇▇▇Overhill Ventures;
(vc) a Transition Services AgreementA Consent under the Intercreditor Agreement dated as of November 24, 1999, in form and substance satisfactory to LLCP and the Senior Lender, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit H (the "Transition Services Agreement") Fourth Amendment Effective Date and duly executed by Seller; ---------------------------------
(vi) the Consent Agreement executed by SellerSenior Lender;
(viid) A Deposit Account Control Agreement, in form and substance satisfactory to LLCP, dated as of the Escrow Agreement Fourth Amendment Effective Date and duly executed by Sellerthe Senior Lender and the Company;
(e) True, correct and complete copies of resolutions duly adopted by the Board of Directors of each of the Company, Parent and Overhill Ventures, respectively, duly authorizing and approving this Amendment and the other Amendment Documents (as defined below) and the transactions contemplated hereby and thereby, in each case certified by the Secretary of the Company, Parent and Overhill Ventures, respectively, in a Secretary's Certificate in form and substance satisfactory to LLCP;
(f) True, correct and complete copies of all consents, authorizations and approvals necessary or required to be obtained in connection with this Amendment and the other Amendment Documents and the transactions contemplated hereby and thereby, including, without limitation, the written consent of the Senior Lender; and
(viiig) a certificate pursuant True, correct and complete copies of all amendments and other documents entered into between the Company Parties (or any of them), on the one hand, and the Senior Lender, on the other, with respect to Section 6 of the Ontario Retail Sales Tax Act.
(b) Buyer shall deliver matters addressed herein or such other matters as LLCP may request, all in form and substance reasonably satisfactory to Seller:
(i) the Purchase Price (less the Purchased Inventory Escrow Amount to be deposited by Buyer LLCP. This Amendment, together with the Escrow Agent at Closing) by wire transfer to an account specified by Seller in a writing delivered to Buyer prior to the Closing Date;
(ii) the Assignment other agreements, instruments and Assumption Agreement executed by Buyer;
(iii) the Tolling Agreement executed by Buyer;
(iv) the Non-Compete Agreements executed by Buyer;
(v) the Transition Services Agreement executed by Buyer;
(vi) the Consent Agreement executed by Buyer;
(vii) the Escrow Agreement executed by Buyer; and
(viii) the promissory note documents described in this Section 2.3(a)2, are collectively referred to herein as the "Amendment Documents."
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Certain Deliveries. In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing:
(a) Seller Concurrently with the Effective Time, the Acquiror shall deliver deliver, or cause to Buyerbe delivered:
(i) a b▇▇▇ of sale with the Escrow Agent for all of deposit into the tangible Purchased Assets in Adjustment Escrow Fund, the form of Exhibit D (the "B▇▇▇ of Sale") executed by Seller; ------------Adjustment Escrow Amount;
(ii) with the Escrow Agent for deposit into the Indemnity Escrow Fund, the Indemnity Escrow Amount;
(iii) with the Escrow Agent for deposit into the Special Indemnity Escrow Fund, the Special Indemnity Escrow Amount;
(iv) with the Company, an assignment of all amount necessary to make payment of the Purchased Assets that are intangible personal property aggregate cash amounts due to holders of Vested Options pursuant to Section 2.9(a)(i);
(v) on behalf of the Company, the amount payable to each counterparty or holder of Indebtedness identified on Schedule 2.2(b)(v) of the Disclosure Schedules (the “Payoff Indebtedness”) in order to fully discharge such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto, as specified in the form of Exhibit E, which assignment shall also contain Buyer's undertaking Debt Payoff Letters and assumption in accordance with this Agreement;
(vi) on behalf of the Assumed Liabilities Company, the amount payable to each Person who is owed a portion of the Estimated Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions and in accordance with this Agreement;
(vii) to the "Assignment Stockholder Representative, the Stockholder Representative Holdback Amount; and
(viii) to the Stockholder Representative, an executed counterpart to the Escrow Agreement signed by the Acquiror.
(b) At or prior to the Closing, the Company shall deliver, or cause to be delivered, to the Acquiror:
(i) all third party consents set forth on Schedule 2.12(b)(i) of the Disclosure Schedules, in form and Assumption Agreement"substance to the Acquiror in its sole discretion;
(ii) executed by Sellerletters of resignation from the officers or directors of the Company and each of its Subsidiaries, in form and substance satisfactory to the Acquiror;
(iii) a Tolling Agreement, dated as of the Closing Date, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit F (the "Tolling Agreement") payoff letter duly executed by Seller; -----------------each holder of Payoff Indebtedness, each in form and substance reasonably acceptable to the Acquiror (each such payoff letter, a “Debt Payoff Letter”);
(iv) a Non-Compete Agreementreasonably satisfactory documentation setting forth an itemized list of all, dated and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire transfer instructions and any other information necessary to effect the final payment in full thereof, and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company or its Subsidiaries (and as of the Closing DateEffective Time, with Buyer or a designated Affiliate of Buyer in substantially the form of Exhibit G Surviving Corporation) (the "Non-Compete Agreement") executed by each of the Seller, Chinook Services LLC, Chinook LLC, D▇▇▇ ▇. ▇▇▇▇, J▇▇▇ ▇. ▇▇▇▇▇▇▇ and R▇▇▇▇▇ ▇. ▇▇▇▇▇“Transaction Expenses Payoff Instructions”);
(v) a Transition Services Agreement, dated as certificate of the Closing DateCompany certifying that the Company is not, and has not been, a United States real property holding corporation, within the meaning of Section 897 of the Code, during the applicable period specified in Section 897(c)(1)(a)(ii) of the Code, which certificate complies with Buyer or a designated Affiliate the requirements of Buyer in substantially Section 1445 of the form of Exhibit H (the "Transition Services Agreement") executed by Seller; ---------------------------------Code;
(vi) evidence in form and substance satisfactory to the Consent Agreement executed by Seller;
Acquiror that the Company has (viiA) the Escrow Agreement executed by Seller; and
(viii) duly adopted a certificate pursuant to Section 6 unanimous written consent of the Ontario Retail Sales Tax Act.
Board of Directors of the Company declaring that each Plan that includes a cash or deferred arrangement under Section 401(k) of the Code (ba “401(k) Buyer shall deliver Plan”) is terminated effective as of the day before the Closing Date and (B) made all employer and employee contributions to Seller:
(ieach 401(k) the Purchase Price (less the Purchased Inventory Escrow Amount to be deposited by Buyer with the Escrow Agent at Closing) by wire transfer to an account specified by Seller in a writing delivered to Buyer prior to Plan so that no further contributions are due after the Closing Date;
(iivii) a duly executed Investor Questionnaire affirming his, her or its status as an Accredited Investor from Stockholders and holders of the Assignment and Assumption Agreement executed by BuyerIn-the-Money Warrants who is a Requisite Holder;
(iiiviii) evidence in form and substance satisfactory to the Tolling Agreement executed by BuyerAcquiror that all accounts or contracts between the Company or any of its Subsidiaries, on the one hand, and any Stockholder and its respective Affiliates, on the other hand, and, in each case, as set forth on Schedule 2.2(b)(viii) of the Disclosure Schedules, has been cancelled without any consideration or further liability to any party, effective as of immediately prior to the Closing;
(ivix) evidence that the Non-Compete Agreements executed by BuyerCompany and each holder of Unvested Options set forth on Schedule 2.2(b)(ix) of the Disclosure Schedules have entered into an Amendment to Stock Option Agreement in the form attached hereto as Exhibit I with respect to such Unvested Options;
(vx) an undertaking from the Transition Services Agreement executed nominee shareholder of Punchh Tech India Private Limited, in form and substance satisfactory to the Acquiror, acknowledging and agreeing to take such actions as may be necessary or desirable to vest, perfect, confirm and transfer any and all right, title and interest in, to and under, the equity interests of Punchh Tech India Private Limited held by Buyer;
such nominee to a designee of the Acquiror (vi) the Consent Agreement executed by Buyer;
(vii) the Escrow Agreement executed by Buyer“Letter of Undertaking”); and
(viiixi) evidence, in form and substance satisfactory to Parent, that (i) all “disqualified individuals” (as such term is defined in the Treasury Regulations promulgated under Section 280G of the Code) have waived their rights to any Potential 280G Benefits absent approval of such benefits by the requisite Stockholders pursuant to Section 280G of the Code and the regulations thereunder and (ii) the promissory note described Stockholders (A) have approved by the requisite vote any Potential 280G Benefits or (B) have voted upon such Potential 280G Benefits and the requisite vote was not obtained with respect to the Potential 280G Benefits and that the “disqualified individuals” shall have forfeited any and all Potential 280G Benefits
(c) All payments hereunder shall be made by wire transfer of immediately available funds in Section 2.3(a)United States dollars to such account as may be designated to the payor by the payee at least two Business Days prior to the applicable payment date.
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