Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date: 8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”); 8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing; 8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”); 8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer; 8.1.5 [***]; 8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights); 8.1.7 no Material Adverse Change having occurred; 8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that 8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares (Yandex N.V.), Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.)
Conditions. 8.1 Notwithstanding anything to 4.1 The sale and purchase of the contrary in this Agreement, Completion Sale Shares is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of on each of the following conditions precedent being fulfilled, satisfied or waived (the “Conditions”):
(a) by the Longstop Date:
8.1.1 Office of Fair Trading (OFT) having provided the Buyer having received OFT Decision that it does not intend to refer the written approval of FAS in connection with the proposed acquisition by the Buyer of the Sale Shares by the Buyer, or any matter arising or relating to that proposed acquisition, to the Competition Commission for investigation (the OFT Condition);
(b) no Material Adverse Change occurring between the date of this Agreement and the date on which the OFT Condition is fulfilled, satisfied or waived pursuant to the provisions of clause 4.15 and, for the purposes of this clause, Material Adverse Change shall mean the implementation, notification or announcement of any change to any statutory or other binding or advisory legislative or regulatory provision (including any OFT decision or directive imposed on MEM or the short-term and/or pay day loan industry requiring a change of MEM’s then current business practices) which directly relates to or impacts the business of providing short-term and/or pay day loans and is reasonably likely to result in a reduction of £4,400,000 in the projected Profitability of the Business (using the Projections as a reference for determining such impact) for the 12 month period following such announcement.
(c) the Buyer having available to it, on an unconditional basis and on terms satisfactory to it in its sole discretion, debt financing facilities or the proceeds of an issuance of debt securities in a public and/or private offering, or any other financing, (Financing) of an amount not less than the Purchase Price (the Financing Condition); and
(d) the Minority SPA having completed in accordance with its terms (the Minority SPA Condition).
4.2 The Buyer and the Seller shall use all reasonable endeavours to procure (so far as they are each able to procure) that the OFT Condition is satisfied on or before the earlier of (i) 24 March 2011 and (ii) the date falling 50 Business Days from the date on which the OFT confirms that the form of the OFT Submission is satisfactory (the OFT Long Stop Date). In order to satisfy the OFT Condition the Buyer shall:
(a) procure the filing of a submission to the OFT (OFT Submission) as soon as reasonably practicable and in any event no later than 14 January 2011;
(b) respond as soon as reasonably practicable (with a target response time of not more than five Business Days) and in any event within any applicable time limit to any request, formal or informal, for information or other input from the OFT;
(c) not enter into (and will procure that no member of the Buyer’s Group enters into) any other acquisition agreement relating to an entity involved in either:
(i) the business of providing short-term and/or pay day loans in the UK; or
(ii) the business of providing consumer credit in the UK; which might reasonably be expected to delay, impede or prejudice the fulfilment of the OFT Condition;
(d) as soon as reasonably practicable notify the Seller of any material communication (whether written or oral) received from the OFT;
(e) give the Seller reasonable notice of and the opportunity for it or any advisers of the Seller’s Group to attend all material meetings and telephone calls with the OFT (save to the extent that the OFT expressly requests that the Seller should not be present or represented at the meeting or part(s) of the meetings); and
(f) provide the Seller with drafts of all material written communications intended to be sent to the OFT and give the Seller a reasonable opportunity to comment thereon and not submit its communications without the prior agreement (such agreement not to be unreasonably withheld or delayed) of the Seller (save that in relation to all disclosures under this clause, business secrets and other confidential material may be provided on an outside counsel to counsel, confidential basis only), provided that nothing in sub-clauses (a) to (f) (inclusive) shall be interpreted or operate to limit the Buyer’s obligation to use all reasonable endeavours to procure that the OFT Condition is satisfied.
4.3 If the Buyer receives the OFT Decision by written notification it shall notify the Seller in writing of the fulfilment of the OFT Condition as soon as reasonably practicable and in any conditions event with 1 Business Day of the Buyer receiving written notification.
4.4 If the OFT Condition is not satisfied on or restrictions before the OFT Long Stop Date or if the OFT Decision is to refer the proposed acquisition of the Sale Shares by the Buyer, or any matter arising or relating to that proposed acquisition, to the Competition Commission for investigation, the Buyer or the Seller may elect to terminate this agreement by written notice to the other and upon giving such notice:
(a) except for this subclause, clauses 1, 2, 10, 16, 18 and 19 all the provisions of this Agreement shall lapse and cease to have effect; but
(b) neither the lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or subject liabilities of either party in respect of damages for non-performance of any obligation under this Agreement falling due for performance prior to such conditions lapse and cessation.
4.5 Contemporaneously with the Buyer using all reasonable endeavours to procure that the OFT Condition is satisfied, the Buyer shall take such steps as are, in it sole discretion, reasonable, to enable it to fulfil, satisfy or restrictions waive the Financing Condition on or before the date falling not later than twenty Business Days following the later of (i) the date on which are reasonably satisfactory the OFT Condition is satisfied and (ii) the date on which Required Financial Information is delivered to the Buyer) and, if and in any event on or before 14 April 2011 (the Final Long Stop Date).
4.6 If the OFT Condition has been satisfied, there has been no Material Adverse Change prior to satisfaction of the OFT Condition but the Financing Condition is not satisfied by the Final Long Stop Date, the Buyer irrevocably undertakes to pay the Seller the Termination Fee.
4.7 The Buyer shall notify the Seller in writing of the fulfilment of the Financing Condition as soon as reasonably practicable and in any event within 1 Business Day of the Buyer becoming aware of such conditions or restrictions fulfilment.
4.8 During the period commencing on the date of this Agreement and ending on the earlier of the Final Longstop Date and the Completion Date, the Seller shall and shall procure so far as it is reasonably able to do so that each relevant member of the Seller’s Group and each Group Company shall provide, and shall cause their respective directors, officers and employees to provide, so far as they are imposedeach reasonably able to, or otherwise affect or relate in each case upon reasonable notice from the Buyer, and at the Buyer’s cost (but only to the extent the Seller or any Seller member of the Seller’s Group Company, reasonably satisfactory incurs out of pocket expenses directly related to the Seller) co-operation efforts described below and in clause 4.9), such reasonable assistance and cooperation (including where necessary providing appropriate instructions to auditors), including reasonable access to information and personnel of the “FAS Approval Condition”);
8.1.2 the Seller and Group, during normal office hours, which is reasonably required for the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 satisfy the Restructuring shall have been completed in accordance with Error! Reference source not found. Financing Condition (Restructuring) (including the “Restructuring Condition”);
8.1.4 each preparation of the actions Required Financial Information as set out in Error! Reference source clause 4.9 and the preparation of customary proforma financial information for the 12 month period ended June 30, 2010 and the six month period ended December 31, 2010) provided that (i) such assistance and cooperation and access to information and personnel of the Group does not found. (DD Follow-up Actions) shall have been fully performed by unreasonably interfere with the Seller and/or ongoing operations of any member of the Seller’s Group or any Group Company or otherwise impair, in any material respect, the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights ability of any person; officer or (c) any injunction, judgment, order, decree or ruling executive of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability member of the Seller, if ’s Group or any Group Company to carry out their duties to the relevant member of the Seller’s Group or the relevant Group Company and (ii) the Buyer were agrees that it would not be reasonable to bring a Claim(s) (assuming for these purposes that require information considered by the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es))Seller, could reasonably acting in good faith, to be expected to exceed [***];commercially sensitive.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares (Dollar Financial Corp), Agreement for the Sale and Purchase of Shares (Dollar Financial Corp)
Conditions. 8.1 Notwithstanding anything (a) The consummation of the contribution by each Rollover Shareholder of the Rollover Shares pursuant to Section 2 hereof shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6the case of clauses (i), (ii) of each and (iii)) waiver by such Rollover Shareholder of the following conditions precedent conditions: (i) the “Conditions”) execution and delivery to such Rollover Shareholder by the Longstop Date:
8.1.1 the Buyer having received the written approval Parent of FAS in connection with the acquisition by the Buyer a copy of the Sale Shares without any conditions or restrictions Shareholders Agreement duly executed by Parent; (or subject to such conditions or restrictions which are reasonably satisfactory to ii) that the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller representations and the Buyer warranties of Parent contained in this Agreement shall have entered into all Transaction Documents be true and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied correct in all material respects as of the Closing Date; (iii) that Parent shall have performed or complied with its covenants, obligations and undertakings in all material respects all covenants required to be performed or complied with by it under this Agreement set out Agreement; (iv) the issuance of the Parent Issued Securities to which such Rollover Shareholder is entitled under Section 2 concurrently with such contribution; and (v) the consummation of the Merger immediately following such contribution.
(b) The consummation of the issuance of the Parent Issued Securities by Parent to each Rollover Shareholder pursuant to Section 2 hereof shall be subject to the satisfaction or (in Clause 9 the case of clauses (Conduct of Business before Completion; Information Rightsv);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none , (w) and (x)) waiver by Parent of the following conditions: (v) the execution and delivery by each Rollover Shareholder of a copy of the Shareholders Agreement duly executed by such Rollover Shareholder, (w) that the representations and warranties of such Rollover Shareholder contained in this Agreement shall have occurred prior to or be true and correct in all material respects as of the date of Completion: Closing Date; (ax) any claim having been made by any third party asserting that such person is entitled Rollover Shareholder shall have performed or complied with in all material respects all covenants required to all be performed or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Pricecomplied with by it under this Agreement; (by) any claim having been made the contribution by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach such Rollover Shareholder of the Seller Warranties Rollover Shares to be contributed by it under Section 2 and (z) the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability consummation of the Seller, if Merger immediately following such issuance of the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Parent Issued Securities.
Appears in 2 contracts
Sources: Rollover Agreement (Alpha Spring LTD), Rollover Agreement (Deng Zhonghan)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser notifying the Vendor in writing that it is satisfied in reliance on the Warranties and upon having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Company referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) the Purchaser having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Australia or elsewhere under the relevant applicable laws and regulations;
(c) the Purchaser having obtained the approval by the eligible shareholders of IMTE (if required) to approve the transaction and the Consideration Shares contemplated to be issued in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 (d) the Seller Vendor having obtained all necessary consents and approvals for the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Hong Kong or elsewhere under the relevant applicable laws and regulations;
(e) the Vendor and or the Company having complied with its pre-Completion obligations specified in Clause 8 and otherwise having performed all of the covenants and agreements required to be performed under this Agreement; and
(f) the Warranties remaining true and accurate and not misleading in any material respect as if repeated on the Completion Date and at all times between the date of this Agreement and the Completion Date.
3.2 In relation to Clause 3.1(a), the Company shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all such information relating to the Company as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Company and be permitted to take copies of any books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendor under Clause 7.
3.3 The Purchaser may at any time by notice in writing to the Vendor waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser and the Vendor may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.2 and informs the Seller having occurredVendor in writing at any time, provided that this obligations and liabilities hereunder save for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability antecedent breaches of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terms hereof.
Appears in 2 contracts
Sources: Shareholder Agreement (Integrated Media Technology LTD), Shareholder Agreement (Integrated Media Technology LTD)
Conditions. 8.1 Notwithstanding anything 3.1 The sale and purchase of the Shares pursuant to the contrary this Agreement is in this Agreement, Completion is all respects conditional upon satisfaction or waiver those matters listed in Schedule 1 (in accordance with Clause 8.6Conditions to Completion) of each of the following conditions precedent (the “Conditions”) by ).
3.2 The Purchaser shall use all reasonable endeavours to fulfil or procure the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer fulfilment of the Sale Shares without any conditions or restrictions listed in paragraphs 1 to 3 of Schedule 1 (or subject Conditions to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the SellerCompletion) (the “FAS Approval ConditionPurchaser Conditions”);
8.1.2 ) (including, without limitation, complying with its obligations under the Dogus SPA with regard to the fulfillment of the Dogus Conditions) as soon as reasonably practicable and in any event on or before the Longstop Date and will notify the Seller and Dogus in writing immediately upon the Buyer satisfaction of each such condition. Without limitation to the foregoing, the Purchaser undertakes to use all reasonable endeavours to submit its application to obtain the approvals or consents listed in paragraphs 1 and 2 of Schedule 1 (Conditions to Completion) to each relevant regulatory body listed therein within 30 Business Days of the date of signature of this Agreement.
3.3 The Seller (for the benefit of the Purchaser and Dogus) shall have entered into give such co-operation and assistance in a timely manner to the Purchaser as the Purchaser may reasonably require to fulfil or procure the fulfilment of the Purchaser Conditions and shall use all Transaction Documents and such Transaction Documents remain reasonable endeavours to fulfil or procure the fulfilment of the condition listed in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. paragraph 4 of Schedule 1 (RestructuringConditions) (the “Restructuring Seller’s Condition”). Without limitation to the foregoing, the Seller (for the benefit of the Purchaser and Dogus) shall accordingly:
(A) take all steps reasonably required to enable the Purchaser to fulfil the Purchaser Conditions as promptly as possible, including assistance with submissions, filings and attendance at such meetings with Governmental Authorities (provided such Governmental Authorities agree to such attendance) as may be reasonably required to enable the Purchaser to fulfil the Purchaser Conditions;
8.1.4 each (B) procure information reasonably required to enable the Purchaser to fulfil the Purchaser Conditions;
(C) take all reasonable actions within its power and to the extent permitted by law (including by voting the Shares and, so far as lawful, procuring that its nominees on the board of directors of the Company and Company Group Members support any vote held at board or executive committee level) and in a timely manner to procure that the Company and Company Group Members co-operate with and assist the Purchaser as may be reasonably required in fulfilling the Purchaser Conditions;
(D) to the extent within its power and permitted by law, take all actions set out and steps it is required to take under or in Error! Reference source connection with this Agreement in a co-ordinated and co-operative manner with Dogus with a view to ensuring that the fulfilment of the Purchaser Conditions and the Dogus Conditions is achieved in an efficient and timely manner; and
(E) in relation to the Seller’s Condition, the Seller undertakes:
(i) to use all reasonable endeavours to submit its application to the BRSA within 5 Business Days of signature of this Agreement with regard to the GECC-Arastirma Transaction;
(ii) to notify the Purchaser immediately if the Seller becomes aware that it is required to obtain any regulatory consent or approval in relation to the GECC-Arastirma Transaction in addition to the approval of the BRSA; and
(iii) not found. to take any step or action in relation to the fulfillment of the Seller’s Condition that would or reasonably may delay or frustrate the fulfillment of the Purchaser’s Conditions in a timely manner.
3.4 Subject to sub-clause 3.5 the Purchaser undertakes to keep the Seller (DD Follow-up Actionsor its advisers) shall informed regularly as to the progress towards satisfaction of the Purchaser Conditions and undertakes to:
(A) notify the Seller (or its respective advisers) of any material communications (whether written or oral) from, and provide the Seller with copies of any material communications from, in each case, the BRSA, CMB, Turkish Competition Board and any other Governmental Authority in relation to obtaining any consent, approval or action in relation to the Purchaser Conditions where such communications have not been fully performed independently or simultaneously supplied to the Seller;
(B) provide the Seller (or its respective advisers) with draft copies of all filings or formal submissions and material communications to the BRSA, CMB, Turkish Competition Board and any other Governmental Authority in relation to obtaining any consent, approval or action in relation to the Purchaser Conditions at such time as will allow the Seller a reasonable opportunity to provide comments on such filings, submissions and communications before they are submitted or sent and provide the Seller (or its respective advisers) with copies of all such filings, submissions and communications in the form submitted or sent; and
(C) give the Seller:
(i) reasonable notice, where practicable, of; and
(ii) where permitted by the Turkish Governmental Authority concerned, allow persons nominated by the Seller and/or to attend, all material meetings and telephone calls with the Turkish Governmental Authority concerned in relation to the Purchaser Conditions and, where appropriate, to make any Group Company submissions at such meetings or on such calls.
3.5 In circumstances where sub-clause 3.4 requires the Purchaser to disclose to the Seller any documentation containing Confidential Business Information, prior to disclosure the Purchaser shall be entitled to redact any Confidential Business Information contained in such documentation, but this sub-clause 3.5 shall not extinguish the Purchaser’s obligation to disclose the remainder of such documentation in accordance with sub-clause 3.4.
3.6 Each of the Parties undertakes to disclose in writing to the other (and Dogus) any matter which will or may reasonably prevent any of the Conditions from being satisfied on or prior to the Longstop Date (or any Postponed Longstop Date) immediately after it comes to its attention.
3.7 In relation to the Seller’s Condition:
(A) the Seller may waive at any time by notice in writing to the Purchaser the Seller’s Condition;
(B) the Seller’s Condition shall be waived immediately upon notice in writing from the Purchaser to the Seller, which notice may be sent by the Purchaser at any time as of the earlier of: (i) the fulfillment of the Purchaser Conditions; and (ii) any regulatory consent or approval being required in relation to the Seller’s Condition in addition to the approval of the BRSA, in which event, Arastirma will take on, mutatis mutandis, the Seller’s obligations under this Agreement and the Seller shall in such event procure that Arastirma complies with, and shall be jointly and severally liable with Arastirma in respect of any breach of, such obligations under this agreement.
3.8 Subject to sub-clause 3.9, if any of the Purchaser Conditions is not fulfilled by the Purchaser by 5.00 p.m. on the Longstop Date, then either the Purchaser or the relevant Former Group CompanySeller may by notifying the other party (and Dogus) within 5 Business Days of the Longstop Date postpone the Longstop Date to (but not before) the Backstop Date, unless the Parties (and Dogus) mutually agree in writing to an extension to a date prior to the Backstop Date, in which event further extensions of the Longstop Date may be made on the same basis (the Longstop Date, as applicableso postponed, to being the reasonable satisfaction of the Buyer;“Postponed Longstop Date”).
8.1.5 [***];
8.1.6 3.9 The Purchaser or the Seller having (as applicable) shall only be entitled to postpone the Longstop Date in accordance with sub-clause 3.8 if:
(A) it has complied in all material respects with its covenantsobligations under this Agreement; and
(B) it is reasonable to expect that all of the Conditions will be fulfilled by the Backstop Date.
3.10 This Agreement shall terminate if any of the Conditions has not been satisfied at the Longstop Date or (where postponed in accordance with sub-clause 3.8 of this Agreement or, subject to sub-clause 11.1(B)(iii), sub-clause 3.7 of the Dogus SPA) the Postponed Longstop Date with the effect that all obligations and undertakings of the parties under this Agreement set out in Clause 9 shall end (Conduct except for the provisions of Business before Completion; Information RightsClauses 17 (Announcements) and 18 (Confidentiality);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none ) but (for the avoidance of doubt) all rights and liabilities of the following parties which have accrued before termination shall have occurred prior continue to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];exist.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to consummate the transactions contemplated by this Agreement shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each fulfillment of the following conditions precedent conditions:
(i) The representations and warranties of the “Conditions”Holder set forth in Section 3 hereof shall be true and correct on and as of the Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Holder in connection with the acquisition consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Buyer of Company or the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Holder shall have been obtained in form and substance reasonably satisfactory to the BuyerCompany.
(iii) andThe Holder shall have delivered to the Company for cancellation its Note or an affidavit of loss and indemnity.
(iv) all governmental or regulatory authorizations, if any such conditions or restrictions are imposedapprovals, including the approval of the TSXV, or otherwise affect or relate permits that are required for the issuance of the Conversion Shares have been obtained
(v) The Company shall have obtained the necessary approvals for the listing of the Common Stock on the NASDAQ Capital Market and shall have consummated a public offering of its securities as described in its Registration Statement on Form S-1, filed with the SEC on December 21, 2012.
(b) The obligations of the Holder to consummate the transactions contemplated by this Agreement shall be subject to the Seller fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and as of the Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any Seller Group Company, governmental or regulatory authority or other third party required to be obtained by the Company or the Holder shall have been obtained in form and substance reasonably satisfactory to the SellerHolder.
(iii) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer The Company shall have entered into all Transaction Documents obtained the necessary approvals for the listing of the Common Stock on the NASDAQ Capital Market and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed consummated a public offering of its securities as described in accordance its Registration Statement on Form S-1, filed with Error! Reference source not found. the SEC on December 21, 2012.
(Restructuringiv) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) The Holder shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, delivered to the reasonable satisfaction Company for cancellation its Note or an affidavit of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations loss and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];indemnity
Appears in 2 contracts
Sources: Debt Conversion Agreement (Vuzix Corp), Debt Conversion Agreement (Vuzix Corp)
Conditions. 8.1 Notwithstanding anything to 4.1 The obligations of the contrary in Parties, respectively, as contemplated by this Agreement, Completion is are in all respects conditional upon satisfaction or waiver the following matters:
(in accordance with Clause 8.6a) of each Each Party being given full access to all the relevant records relating to the other Parties. The Parties agree that they, and their representatives shall not disclose any information so furnished without the consent of the following conditions precedent furnishing Party;
(the “Conditions”b) There not being any objection put forward by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS any relevant authority in connection with the acquisition by finality and purpose of this Agreement and the Buyer transactions contemplated herein;
(c) The completion of the Sale Shares without agreements contemplated hereby, including the amendment of Goltech's regulations, and other organizational documents to reflect the matters stipulated hereinabove;
(d) No governmental agency or regulatory body or any conditions other person or restrictions (organization having instituted any action, suit or subject investigation which restrains, prohibits or otherwise challenges the completion and performance of the transactions contemplated in this Agreement; or threatened to take any action as a result of or in anticipation of the transactions contemplated in this agreement; or proposed or enacted any statute or regulation which would prohibit, materially restrict or materially delay implementation of the transactions contemplated by this Agreement.
4.2 MOT and its representatives shall have the right to conduct a full due diligence review of the activities, accounts, contracts, capital, payables, receivables, oil sales, production, exploration, assets, liabilities, and other facets of the businesses of Goltech, Goloil and Teton for a period until 24 July 2000. Without limiting the foregoing, Teton shall provide to MOT a detailed list of its liabilities and obligations. In the event that such conditions due diligence reveals events, circumstances, facts or restrictions other matters which are reasonably satisfactory to breach the Buyer) andrepresentations and warranties set forth herein, if reveal any such conditions material liabilities of Goloil, Goltech or restrictions are imposedTeton, or otherwise matters that materially adversely affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of MOT hereunder, or under any person; or (c) any injunctionagreement executed and delivered in connection herewith, judgmentthen MOT may terminate this Agreement, orderand thereupon the provisions of Clause 2.10 shall apply as if MOT had breached this Agreement. Thereupon, decree or ruling of any Governmental Authority each Party shall having been issued that
8.1.9 no material breach of take such actions, deliver such instruments and otherwise undertake such operations as necessary to give effect to the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];foregoing.
Appears in 2 contracts
Sources: Master Agreement (Teton Petroleum Co), Master Agreement (Teton Petroleum Co)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Group referred to in Clause 3.3 below and the ----------- results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) the due execution of a share transfer agreement by the Vendors and the Purchaser's Nominees;
(c) if so required, passing of necessary resolutions by directors of the Purchaser at a board meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(d) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required under US securities laws or other relevant laws, regulations and rules in US in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (e) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or the change of control of the Company having been obtained from the relevant PRC governmental authorities, including but not limited to the Buyernew business license for the Company;
(f) and, if any such conditions or restrictions are imposed, or otherwise affect or relate the Purchaser having obtained a legal opinion issued by a lawyer (acceptable to the Seller Purchaser) qualified to practice PRC securities laws (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the sale and purchase of the Sale Interests;
(iii) the appointment of Director(s) nominated by the Purchaser become effective;
(iv) no change in the permitted scope business of the Company after the transfer of the Sale Interests;
(v) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a legal opinion issued by a US legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of the Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the Purchaser;
(h) the Purchaser having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (i) the Seller due execution of a share transfer and pledge agreement by the Purchaser's Nominees and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (j) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all time between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clauses 3.1(e) above and shall keep -------------- the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these relevant regulatory authorities.
3.3 In relation to Clause 3.1
(a) the Vendors shall give and shall procure ------------- that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all members of the Group and all such information relating to the Group as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Group and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Group shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 10. ---------
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the ----------- conditions set out in Clause 3.1 has not been made satisfied (or as the case ---------- may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendors in writing at ---------- any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right of termination under this Agreement obligations and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];liabilities.
Appears in 2 contracts
Sources: Agreement for Sale and Purchase of Certain Interest in the Registered Capital (Hartcourt Companies Inc), Agreement for Sale and Purchase of Certain Interest in the Registered Capital (Hartcourt Companies Inc)
Conditions. 8.1 Notwithstanding anything 2.1 Subject to the contrary terms of the Mandate Documents, the Underwriter is pleased to offer to underwrite and provide to the Borrower 100% of the Facility.
2.2 The Underwriter’s offer to underwrite the Facility is subject to satisfaction of the following conditions:
(a) compliance by the Co-Borrowers with all the terms of each Mandate Document in this Agreementall material respects and the Mandate Documents not having been terminated in accordance with the terms thereof;
(b) the preparation, Completion is conditional upon satisfaction or waiver execution and delivery of the Facility Agreement (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Term Sheet and otherwise in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably form and substance mutually satisfactory to the BuyerCo-Borrowers and the Underwriter) andby no later than six months after the date of this Letter or any later date agreed between the Co-Borrowers and the Mandated Lead Arranger;
(c) there being no material adverse changes in the business, if any such conditions or restrictions are imposedfinancial conditions, or otherwise affect or relate to assets of the Seller or any Seller Group Company, reasonably satisfactory to Co-Borrowers and the Seller) (the “FAS Approval Condition”)Target;
8.1.2 the Seller and the Buyer shall have entered into (d) satisfaction of all Transaction Documents and such Transaction Documents remain in full force and effect, subject conditions precedent to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions utilisation set out in Error! Reference source the sections headed “Conditions Precedent” and “Further Conditions Precedent” in the Term Sheet; and
(e) it not found. being illegal or unlawful for the Underwriter (DD Follow-up Actionsor any Affiliate of the Underwriter) shall have been fully performed if the Underwriter were to perform any of its obligations as contemplated under the Mandate Documents or to fund, make available or maintain its participation under the Facility.
2.3 If it is or becomes unlawful in any applicable jurisdiction for the Underwriter (or any Affiliate of the Underwriter) to perform any of its obligations as contemplated by the Seller and/or any Group Company Mandate Documents or to fund, make available or maintain its participation under the relevant Former Group CompanyFacility, as applicable, to the reasonable satisfaction of the Buyer;Mandated Lead Arranger shall:
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting promptly notify the Co-Borrowers upon becoming aware of that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Priceevent; and
(b) in consultation with the Co-Borrowers, take all reasonable steps to mitigate any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach circumstances which arise and which would result in its underwriting in respect of the Seller Warranties Facility not being available including (but not limited to) transferring its rights and obligations under the Mandate Documents to one or more of its Affiliates provided that:
(i) the Co-Borrowers shall promptly, jointly and severally, indemnify the Underwriter for all costs and expenses reasonably and properly incurred by the Seller having occurredUnderwriter as a result of steps taken by it pursuant to this paragraph (b); and
(ii) the Underwriter is not obliged to take any such steps if, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which in the aggregate liability opinion of the Seller, if the Buyer were to bring a Claim(s) Underwriter (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)acting reasonably), could reasonably to do so might be expected materially prejudicial to exceed [***];it.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ma Kevin Xiaofeng), Share Purchase Agreement (ATA Inc.)
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to consummate the transactions contemplated by this Agreement shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver fulfillment of the following conditions:
(in accordance with Clause 8.6i) The representations and warranties of each of the following conditions precedent Holders set forth in Section 3 hereof shall be true and correct on and as of the Closing date and a certificate certifying such shall be delivered.
(the “Conditions”ii) All proceedings, corporate or otherwise, to be taken by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Holders in connection with the acquisition consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Buyer of Company or the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Holders shall have been obtained in form and substance reasonably satisfactory to the BuyerCompany.
(iii) and, if any such conditions or restrictions are imposed, or otherwise affect or relate The Holder shall have delivered to the Seller Company for cancellation its Notes or an affidavit of loss and indemnity.
(b) The obligations of the Holder to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and as of the Closing date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any Seller Group Company, governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have been obtained in form and substance reasonably satisfactory to the SellerHolders.
(iii) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer The Company shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject caused the Conversion Shares to be approved for listing on the Over the Counter Bulletin Board or any amendments thereto both Parties may agree to in writing;national securities exchange on which the Common Stock is then listed.
8.1.3 the Restructuring (iv) The Holder shall have been completed in accordance with Error! Reference source not foundreceived a legal opinion of ▇▇▇▇▇▇▇ ▇. (Restructuring) (▇▇▇▇▇▇▇▇, counsel to the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, addressed to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or Holder dated as of the Closing date covering such matters as is customary of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes transactions of this Clause 8.1.9 “material breach” means a breach nature and in form and substance reasonably satisfactory to the Holder.
(vi) The Holder shall have delivered to the Company for cancellation their Notes or series an affidavit of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement loss and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];indemnity
Appears in 2 contracts
Sources: Debt Conversion Agreement (Execute Sports Inc), Debt Conversion Agreement (Execute Sports Inc)
Conditions. 8.1 Notwithstanding anything 3.1 The completion of the sale and purchase of shares hereunder shall be conditional upon:
(a) The Purchaser’s satisfaction with the completion and result of a comprehensive due diligence inspection of the Company (which shall cover without limitation the legal, financial and commercial aspects) and the Purchaser shall have the absolute discretion in deciding whether or not it is satisfied with the result of such inspection.
(b) The obtaining of the relevant Board Resolution and Shareholders’ Resolution of the Company to approve the terms of this Agreement and all matters and affairs relating to the contrary transaction hereunder, as required.
(c) To obtain all necessary consent and approval as may be required under the laws and regulations governing stock trading in the United States of America (including all relevant consents and approvals of governmental and regulatory authorities) regarding the transaction hereunder for the consideration as agreed by the Purchaser.
(d) If so required, the obtaining of a letter of approval issued by a lawyer in the United States of America by the Purchaser (in such format and contents as the Purchaser in its absolute discretion may determine) regarding the contents and the effects of this Agreement, Completion is conditional upon satisfaction or waiver including :-
(in accordance with Clause 8.6i) of each the legality and feasibility of the following conditions precedent (contents of this Agreement, including the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer setting of the Sale Shares without price for the issue of any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings shares under this Agreement set out in Clause 9 (Conduct and all matters concerning the transfer of Business before Completion; Information Rights)such shares;
8.1.7 no Material Adverse Change having occurred;
8.1.8 none (ii) to confirm that all the procedural requirements and requisite approval has been complied with and obtained for the acquisition of the following shall have occurred prior to shares of the Company under this Agreement; and
(iii) regarding all other matters the performance, fulfillment or as occurrence of which the Purchaser may reasonably require.
(e) All the covenants and confirmation contained in this Agreement being truthful and free from misleading information from the date of this Agreement until the date of Completion: .
(f) The Sale Shares be freely transferable to an independent third party without violation of the laws and regulations of the People’s Republic of China or its governmental policy.
3.2 The Vendor shall use its best endeavours to assist the Purchaser and such persons as the Purchaser may authorize for such purpose to complete the due diligence inspection and to allow them to enter into the premises of the Company and to peruse all the books, documents, contracts, records, tax forms, permits, correspondence and return forms and such other information of the Company as the Purchaser may reasonably require, so that it can conduct a comprehensive due diligence exercise (covering, but not limited to, the legal, financial and business aspects of the Company), and allow copies to be made of the relevant documents. The Company’s directors and staff should give the Purchaser all the required information and explanations. For the avoidance of doubt, the carrying out of due diligence inspection will not exonerate the Vendor from any obligation or liability towards the Purchaser nor limit the scope of such obligation or liability.
3.3 The Purchaser is entitled to waive any requirement under Clause 3.1 hereof. If, (a) any claim having condition under Clause 3.1(a) has not been made fulfilled (or otherwise waived by any third party asserting that the Purchaser) before 3:00 p.m. on the Completion Date or on such person is entitled to all postponed date for Completion as the Purchaser may agree or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) the Purchaser is not satisfied with the result of the due diligence inspection according to Clause 3.2 hereof and notify the Vendor according in writing, then this Agreement shall become null and void and neither party shall have any claim having further obligation or liability towards the other under this Agreement.
3.4 If any pre-condition to Completion has not been made by any person (other than a Seller Related Entity fulfilled on or a Buyer Related Person) asserting that before the Transaction Documents Completion Date or has been rendered unfulfillable then the Vendor or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach Company must upon its gaining knowledge of the Seller Warranties by situation forthwith inform the Seller having occurred, provided Purchaser in writing accordingly. Both parties hereby declare that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which notwithstanding the aggregate liability issue of the Seller, if written notification mentioned above all the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination Vendor’s legal obligations under this Agreement will remain unchanged.
3.5 From the date of this Agreement until the Completion Date, save and Completion was effected notwithstanding except with the breach(es))consent of the Purchaser, could reasonably the Vendor covenants to procure that the Company will :- keep the daily operation and maintenance of best practice maintain its full operation; accounts payable in a timely fashion; maintain all records of the major operation the Vendor and the Company accurately. comply with the government’s main demands, except where is reason to object to such demand and the consent of the Purchaser to raise such objection having been obtained; pay up the payments which should be expected paid out of the turnover or profits, taxes and fees and government funds, except where there is sufficient reason for claiming that such sums are not payable and the prior consent of the Purchaser to exceed [***];object to such payment having been obtained; fulfill all the provisions of contracts signed by the Vendor or the Company; refrain from selling any of the Company’s assets and contractual rights without first obtaining the prior written consent of the Purchaser.
Appears in 2 contracts
Sources: Stock Transfer Agreement (Teda Travel Group Inc), Stock Transfer Agreement (Network Cn Inc)
Conditions. 8.1 Notwithstanding anything 2.1 The obligations of the Investor to subscribe and pay for the Firm Shares shall be conditional on the following Conditions being satisfied:
2.1.1 the ownership of all of the Key Intellectual Property Rights having been duly vested into the Issuer or any of its subsidiaries free from all Encumbrances to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of the Investor;
2.1.2 the Reorganisation having been duly completed to the satisfaction of the Investor;
2.1.3 each of the following conditions precedent Key Employees having duly entered into an employment agreement (or supplemental agreement) containing restrictive covenants provisions with the “Conditions”) Issuer or its subsidiaries and termination provisions in form and substance acceptable to the Investor;
2.1.4 all of the Warranties made, or any of the undertakings given, by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings Issuer under this Agreement set out in Clause 9 (Conduct continuing to be true, accurate and correct and not misleading as of Business before Completion; Information Rights)the Closing Date, and as if made on the Closing Date;
8.1.7 2.1.5 the Issuer having obtained all necessary authorisations, approvals or consents required under the Articles and By-laws and applicable Laws for entering into this Agreement and the transactions contemplated hereunder, including the allotment and issue of the Subscription Shares;
2.1.6 the Investor having obtained all necessary authorisations, approvals or consents required under its articles and by-laws and applicable Laws to subscribe for the Subscription Shares from the Issuer;
2.1.7 the Investor having been satisfied with the results of its due diligence investigations on the Issuer and its Subsidiaries, taken as a whole and being satisfied that key technologies and products of the Issuer can be applied commercially and in an economically viable and profitable manner;
2.1.8 all the authorisations, approvals, consents, waivers and permits of the relevant authorities of the relevant jurisdictions which are necessary to give effect to this Agreement and the transactions contemplated hereunder as required by all applicable Laws having been granted, received and obtained and remaining in full force;
2.1.9 the Issuer having performed all of its obligations hereunder expressed to be performed on or before such dates;
2.1.10 no shares or securities convertible into shares having been issued by the Issuer or its Subsidiaries since the date of this Agreement;
2.1.11 no Material Adverse Change Effect having occurred;
8.1.8 none 2.1.12 no injunction, interim or otherwise, having been granted in respect of the following Issuer which would prohibit the Issuer from entering into and performing its obligations under this Agreement; and
2.1.13 there being no litigation pending against the Issuer that, if decided adversely, would inhibit or otherwise delay the consummation of the transactions contemplated in this Agreement.
2.2 The Investor may in its absolute discretion at any time before Closing waive any of the Conditions by notice to the Issuer and such waiver may be subject to such terms and conditions as may be agreed between the Investor and the Issuer in writing.
2.3 If any of the Conditions remain unsatisfied or is not waived on the day falling on the expiry of the Long Stop Date or becomes incapable of fulfilment on or before the day falling on the expiry of the Long Stop Date (other than as a result of a breach of this Agreement by Powin Corp or the Issuer), this Agreement, other than clause 1 (Interpretation), this clause 2 (Conditions), clauses 8 (Costs and Expenses), 9 (Announcement, Information and Confidentiality), 10 (Notices), 12 (Entire Agreement), 14 (Waiver), 15 (Partial Invalidity), 18 (Governing Law and Jurisdiction) and 19 (Counterparts) shall have occurred prior automatically terminate with immediate effect and each Party's rights and obligations other than those specified above shall cease immediately on termination. Such termination shall not affect the rights and obligations of the Parties existing before termination.
2.4 The Issuer shall, at its own cost, use its best endeavours to or ensure that the Conditions set out in clause 2.1 (other than clause 2.1.6) are fulfilled as of soon as reasonably practicable after the date of Completion: (a) this Agreement.
2.5 Each Party shall notify the other Parties as soon as practicable after it becomes aware that a Condition in clause 2.1 has been satisfied or that any claim having been made by any third party asserting that such person Condition is entitled to all or any part incapable of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];fulfilment.
Appears in 2 contracts
Sources: Subscription Agreement (Powin Corp), Subscription Agreement (Powin Corp)
Conditions. 8.1 Notwithstanding anything For the purposes of Article 4(8) of the MoU, an authority listed in Article 1 of this Annex shall be considered as an onward sharing authority, under the following conditions:
(1) Confidential Information is transmitted only where necessary for the performance of the authorities’ lawful supervisory tasks;
(2) Confidential information is needed for the discharge of the own supervisory functions of the onward sharing authority;
(3) The supervisory function for which confidential information is needed is one of the following:
(a) the public duty of supervising other financial sector entities and the supervision of financial markets;7
(b) the responsibility for maintaining the stability of the financial system through the use of macroprudential instruments;
(c) the protection of the stability of the financial system;
(d) the administration of contractual or institutional protection schemes, that is a contractual or statutory liability arrangement which has been authorized by the competent authority under the applicable law to protect member institutions and in particular ensure their liquidity and solvency to avoid bankruptcy where necessary;
(e) the overseeing of bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures;
(f) the prevention of the use of the financial system for the purposes of money laundering and terrorist financing;
(g) the administration of deposit-guarantee schemes and investor compensation schemes;
(h) the overseeing of persons charged with carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions; 7 This does not include market conduct functions. (j) recovery and early intervention of institutions.
(4) The information received shall in any event be subject under the applicable law to professional secrecy requirements at least equivalent to those applicable to the contrary authority that provided the information. The equivalence of the confidentiality regime applicable to the UK authorities shall be evaluated having regard to the EBA assessment.
(5) In addition to such professional secrecy requirements as may be required by law, confidential information will not be further disclosed by the onward sharing authority, except to other authorities listed in Article 1 of this AgreementAnnex, Completion is conditional upon satisfaction or waiver (and subject to the obligation to notify the Authority which provided the information in accordance with Clause 8.6Article 4(8) of each of the following conditions precedent (the “Conditions”) MoU or as authorised by the Longstop Date:
8.1.1 authority which has provided the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed information in accordance with Error! Reference source not found. (RestructuringArticle 4(6) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];MoU.
Appears in 2 contracts
Sources: Memorandum of Understanding, Memorandum of Understanding
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to consummate the transactions contemplated by this Agreement shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each fulfillment of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 (i) The representations and warranties of Executive set forth in Section 4 hereof shall be true and correct on and as of the Buyer having received the written approval of FAS Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings to be taken by Executive in connection with the acquisition consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Buyer of the Sale Shares without any conditions Company or restrictions (or subject to such conditions or restrictions which are Executive shall have been obtained in form and substance reasonably satisfactory to the BuyerCompany.
(iv) andAll regulatory authorizations, if any such conditions or restrictions are imposedapprovals, including approval of the TSXV, or otherwise affect or relate permits that are required for the issuance of the Conversion Shares have been obtained.
(v) Before June 30, 2013, the Company shall have obtained the necessary approvals for the listing of its Common Stock on the NASDAQ Capital Market and shall have consummated a public offering of its securities as described in its Registration Statement on Form S-1, filed with the SEC on December 21, 2012.
(b) The obligations of Executive to consummate the transactions contemplated by this Agreement shall be subject to the Seller fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 3 hereof shall be true and correct on and as of the Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals, or authorizations of any Seller Group Company, governmental or regulatory authority or other third party required to be obtained by the Company or Executive shall have been obtained in form and substance reasonably satisfactory to Executive.
(iii) On or before June 30, 2013, the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer Company shall have entered into all Transaction Documents obtained the necessary approvals for the listing of its Common Stock on the NASDAQ Capital Market and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed consummated a public offering of its securities as described in accordance its Registration Statement on Form S-1, filed with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group CompanySEC on December 21, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];2012.
Appears in 2 contracts
Sources: Deferred Compensation Agreement (Vuzix Corp), Deferred Compensation Agreement (Vuzix Corp)
Conditions. 8.1 Notwithstanding anything 3.1 The obligations of the Parties to complete the contrary in issuance and subscription of the First Subscription Shares pursuant to this Agreement, Completion is Agreement shall be conditional upon the satisfaction or, if applicable, waiver of the following conditions:
3.1.1 there not having occurred at any time before First Completion, any event or circumstance which renders any of the TM Home Warranties untrue, inaccurate or misleading in any material respect;
3.1.2 there not having occurred at any time before First Completion, any event or circumstance which renders any of the Alibaba Warranties untrue, inaccurate or misleading in any material respect;
3.1.3 there not having occurred at any time before First Completion, any event or circumstance which renders any of the E-House Warranties untrue, inaccurate or misleading in any material respect;
3.1.4 E-House having obtained the consent and waiver (in accordance with Clause 8.6) from holders of the Old Notes for, among other things, the transactions contemplated herein and the Restructuring;
3.1.5 each of the following conditions precedent Cooperation Agreements having been terminated;
3.1.6 all the authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required by Applicable Laws having been granted, received, obtained and completed;
3.1.7 there not being in effect any Applicable Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement; and
3.1.8 E-House paying Alibaba Investment, on the First Completion Date, an amount of US$1,275,000 (the “ConditionsIncentive Fee”) by in consideration for Alibaba Investment electing not to subscribe for additional shares in TM Home pursuant to Clauses
2.1 and 2.2.
3.2 The obligations of the Longstop DateParties to complete the issuance and subscription of the Second Subscription Shares pursuant to this Agreement shall be conditional upon the satisfaction or, if applicable, waiver of the following conditions:
8.1.1 the Buyer 3.2.1 there not having received the written approval of FAS in connection with the acquisition by the Buyer occurred at any time before Second Completion, any event or circumstance which renders any of the Sale Shares without TM Home Warranties untrue, inaccurate or misleading in any conditions material respect;
3.2.2 there not having occurred at any time before Second Completion, any event or restrictions (circumstance which renders any of the Alibaba Warranties untrue, inaccurate or subject to such conditions misleading in any material respect;
3.2.3 there not having occurred at any time before Second Completion, any event or restrictions circumstance which renders any of the E-House Warranties untrue, inaccurate or misleading in any material respect;
3.2.4 the courts of the Cayman Islands and Hong Kong having sanctioned the relevant Scheme filed under the laws of Cayman Islands and the laws of Hong Kong, as the case may be, and the Restructuring having become unconditional in all respects;
3.2.5 all the authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are reasonably satisfactory necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the Buyer) transactions contemplated hereunder as required by Applicable Laws having been granted, received, obtained and completed; and
3.2.6 there shall not be in effect any Applicable Law restraining, if any such conditions or restrictions are imposed, enjoining or otherwise affect prohibiting or relate to making illegal the Seller or consummation of any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions transactions contemplated by this Agreement.
3.3 The Conditions set out in Error! Reference source Clauses 3.1.1 and 3.2.1 may be waived in writing in whole or in part by E-House and Alibaba Investment. The Conditions set out in Clauses 3.1.2 and 3.2.2 may be waived in writing in whole or in part by E-House. The Conditions set out in Clauses 3.1.3, 3.1.5, 3.1.8 and 3.2.3 may be waived in writing in whole or in part by Alibaba Investment. The Conditions set out in Clauses 3.1.4, 3.1.6, 3.1.7, 3.2.4, 3.2.5 and 3.2.6 may not found. (DD Followbe waived by any Party.
3.4 E-up Actions) House shall have been fully performed by use all reasonable endeavours to procure the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction and continued satisfaction of the Buyer;
8.1.5 [***];
8.1.6 Conditions set out in Clauses 3.1 and 3.2 (other than the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement Conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares3.1.1, and/or the Subsidiary Equity Interests3.1.2, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement 3.2.1 and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];3.
Appears in 2 contracts
Sources: Agreement for the Issuance and Subscription of Shares, Agreement for the Sale and Purchase of Shares
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 5.1. Completion is conditional upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent conditions:
(a) the “Conditions”CMA having accepted the Undertaking in Lieu from the Seller Parent (and such undertaking having been signed by the CMA and the Seller Parent) and the CMA having approved the Buyer Parent or its Related Persons as the suitable purchaser for the purposes of the Transaction;
(b) the closing of the transactions contemplated under the Business Combination Agreement in accordance with the terms of such agreement;
(c) each Rig (other than: (i) a Rig that has become a Rig Total Loss; or (ii) any Rig with Rig Damage on the Condition Satisfaction Date which is subject to determination pursuant to clauses 7.6 to 7.12 (inclusive)) is on Completion delivered with class maintained, free of average damage affecting class which has been incurred after the Rig Inspection Date relating to that Rig;
(d) no Rig Total Loss Event having occurred in respect of more than two Rigs; and
(e) the consent in writing of the Drilling Customer to each of the Drilling Agreements (other than the NLN Drilling Agreement) to novate such agreement, subject to clause 5.3(b), on the terms of the Drilling Novation Agreements having been received prior to the satisfaction of the CMA Condition.
5.2. Each Seller Party shall use its reasonable endeavours to procure the satisfaction of the Conditions as soon as practicable and in any event by no later than the Longstop Date:
8.1.1 . The Seller Parent shall notify the Buyer having received in writing as soon as reasonably practicable if it becomes aware of any matter, event or circumstance which would result in any of the written approval Conditions becoming incapable of FAS satisfaction.
5.3. The Buyer shall (and shall procure that each of its Related Persons shall) cooperate with the Seller Parties in connection with the acquisition satisfaction of the Condition set out in clause 5.1(e), and shall (without limitation):
(a) promptly provide to the Seller Parent (upon its written request) with all information and documents reasonably required by any Drilling Customer;
(b) consent to any amendment reasonably requested by the Drilling Customer to the terms of any Drilling Novation Agreement to be entered into by such customer on Completion, provided that the Buyer and its Related Persons shall:
(i) only be required to assume any obligation or liability under a Drilling Agreement that arises on or after Completion (provided that this clause 5.3(b)(i) shall not in any way require any Seller Party to remedy any damage to any Rig or the Rig Assets other than in accordance with the terms of clause 7); or
(ii) not be required to agree any term that is inconsistent with the terms of this agreement or any other Transaction Document;
(c) provide a Drilling PCG to each Drilling Customer; and
(d) in accordance with the NSH Drilling Agreement and the NST Drilling Agreement, provide each Drilling Customer a deed of liability and insurance and a deed of mutual indemnity and waiver, in each case, in the form contained in the relevant Drilling Agreement.
5.4. The Buyer undertakes to cooperate with the CMA in relation to the CMA’s suitable purchaser assessment, including promptly providing the CMA with all information and documents reasonably required for the purposes of the purchaser suitability assessment and making the management of the Buyer available to meet with, and present to, the CMA on the proposed business plan for the Business to be operated by the Buyer following Completion and the NLN Completion.
5.5. The Buyer shall:
(a) present a well developed business plan to the CMA for the Business when requested to do so by the CMA;
(b) make senior management available to meet with and present to the CMA on the business plan and arrange the attendance of senior management from its selected partners to meet with the CMA when requested to do so by the CMA;
(c) provide information reasonably requested by the CMA in relation to the assessment of purchaser suitability, in a timely manner;
(d) keep the Seller Parent regularly updated on the status of discussions with the CMA in connection with the Transaction; and
(e) promptly notify the Seller Parent of any communication received from the CMA in connection with the Transaction and, to the extent permitted by applicable law, promptly provide the Seller Parent with copies of all communications received from, or made to, the CMA in connection with the Transaction, in each case, it being acknowledged that any Buyer Confidential Information related to such discussions or communication with the CMA shall be shared on a counsel to counsel basis only.
5.6. The Buyer undertakes to each Seller Party that it has the financial resources, expertise (including managerial, operational and technical capability), incentive and intention to maintain and operate the Assets and the Business as part of a viable and active business in competition with the Sellers and other competitors in the provision of offshore drilling services using ▇▇▇▇-up rigs in North West Europe (identified as the United Kingdom, Denmark and the Netherlands), excluding Norway.
5.7. The Buyer undertakes to each Seller Party that it shall not at any time prior to Completion, either alone or acting in concert with any other person, acquire, agree to acquire or offer to acquire, or cause any other person to acquire, agree to acquire or to offer to acquire, or progress or contemplate (or cause any other person to progress or contemplate) arrangements which, if carried into effect, would result in the acquisition of a competing business to the Business or any other business, the acquisition of which might reasonably be expected to prejudice or delay the outcome of the Sale Shares without satisfaction of any conditions of the Conditions or restrictions (the occurrence of Completion.
5.8. To the extent requested by the CMA, each Party agrees to amend the terms of this agreement or subject to such conditions or restrictions which are reasonably satisfactory any other Transaction Document on terms acceptable to the BuyerCMA and shall at their own expense execute all such documents (including a deed of amendment) andand do such acts and things as the CMA may reasonably require for the purpose of such amendment.
5.9. By no later than one Business Days following the satisfaction of the Condition set out in clause 5.1(e), if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Parent and the Buyer shall have entered into deliver a notice in writing to the CMA (signed by the Seller Parent and the Buyer) confirming that such condition has been satisfied.
5.10. The Seller Parent shall keep the Buyer reasonably advised of the progress towards the satisfaction of the Conditions and shall notify the Buyer in writing upon the satisfaction of each Condition capable of satisfaction prior to Completion and the first Business Day following the satisfaction of all Transaction Documents and the Conditions (or, in the case of the Rig Conditions, such Transaction Documents remain conditions continuing to be fulfilled) being, the “Condition Satisfaction Date”.
5.11. If any of the Conditions has not been satisfied or becomes incapable of satisfaction, in full force and effecteach case, subject to any amendments thereto both Parties may agree to in writing;on or before the Longstop Date, this agreement shall terminate with effect from that date.
8.1.3 the Restructuring shall have been completed 5.12. If this agreement terminates in accordance with Error! Reference source not found. (Restructuring) (clause 5.11, the “Restructuring Condition”);
8.1.4 each obligations of the actions set out in Error! Reference source not found. (DD Follow-up Actions) Parties shall have been fully performed by automatically terminate, save that the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction rights and liabilities of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenantsParties which have accrued prior to (or as a result of) termination shall continue to subsist, obligations and undertakings including those under this Agreement set out in Clause 9 clause 5.12 and clauses 1, 4.4, 21 to 23 and 26 to 37 (Conduct of Business before Completion; Information Rightsinclusive);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Noble Corp), Asset Purchase Agreement (Noble Finance Co)
Conditions. 8.1 Notwithstanding anything (a) All obligations of Buyer under this Agreement are subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) fulfillment of each of the following conditions precedent (conditions, any one or more of which may be waived in writing by Buyer prior to the “Conditions”) by the Longstop DateClosing:
8.1.1 the Buyer having received the written approval (i) The representations and warranties of FAS Seller contained in connection with the acquisition by the Buyer this Agreement shall be true and correct at and as of the Sale Shares without any conditions or restrictions (or subject to Closing Date as though such conditions or restrictions which are reasonably satisfactory to the Buyer) andrepresentations and warranties were then again made and at Closing, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the shall deliver a reaffirmation of all representations and warranties hereunder signed by Seller and certified as of the Buyer Closing Date.
(ii) Seller shall have entered into performed all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred that are to be performed by it prior to or as of the date Closing Date.
(iii) Buyer and Seller shall have executed and delivered all documents to be executed and delivered at Closing pursuant to the terms hereof.
(iv) Buyer shall have received the Title Policies in accordance with the requirements of Completion: Section 6(b) or the written assurances of the Title Company that the Title Policies meeting the requirements of this Agreement will be issued within a reasonable period of time after Closing.
(av) To the extent required by applicable law, Buyer shall have received the regulatory approvals of any claim having been made by governmental authorities regulating the Facilities or the transaction which is the subject of this Agreement in order to enable Buyer to take title to Seller’s Assets or any third party asserting portion thereof and any applicable waiting period under such laws shall have expired.
(vi) Either Buyer shall have received written consent from the applicable lenders with respect to Buyer’s assumption of the Existing Debt (the “Lenders’ Consent”) at Closing or Seller shall have provided any required notices for the prepayment or defeasance of the Existing Debt at Closing and any applicable prepayment/defeasance notice periods shall have expired. Notwithstanding the foregoing, Buyer acknowledges that the receipt of the Lenders’ Consent is not a condition of Closing and, if such person consent is not available within the timeline for Closing provided in this Agreement, Seller shall be entitled to payoff Existing Debt at Closing from the proceeds of the sale and/or cause Buyer to defease such debt (where prepayment is not permitted by the terms of the applicable loan documents), and Buyer shall be responsible for any and all prepayment fees and/or defeasance costs associated therewith as provided in Section 5(h) above.
(vii) Tenant and Seller shall have entered into lease termination agreements with respect to the Facility Leases (the “Lease Termination Agreements”), pursuant to which the Facility Leases shall be terminated effective as of Closing. Notwithstanding the foregoing, if reasonably requested by Buyer in connection with the assumption of the Existing Debt or in order to facilitate the continued licensing of any applicable Facility comprising a part of the Seller’s Assets, Seller shall execute and deliver an assignment of any of the Facility Leases (and related ancillary agreements) at Closing to Buyer or interest in an Affiliate of Buyer designated by Buyer (the Sale Shares“Lease Assignments”).
(vi) Prior to the expiration of the Due Diligence Review Period, and/or Seller and Buyer shall have agreed upon the Subsidiary Equity Interestsform of the Seller Carry-back Loan Documents, and/or which Seller Carry-back Loan Documents shall be executed and delivered concurrently with the Purchase Price; Closing.
(b) All obligations of Seller under this Agreement are subject to the fulfillment, prior to or as of the Closing Date, of each of the following conditions, any claim having been one or more of which may be waived by Seller in writing:
(i) The representations and warranties of Buyer contained in this Agreement shall be true and correct at and as of the Closing Date as though such representations and warranties were then again made and at Closing, Buyer shall deliver a reaffirmation of all representations and warranties hereunder signed by any person Buyer and certified as of the Closing Date.
(other than a ii) Buyer shall have performed all of its obligations under this Agreement that are to be performed by it prior to or as of the Closing Date.
(iii) Buyer and Seller Related Entity or a shall have executed and delivered all documents to be executed and delivered at Closing pursuant to the terms hereof.
(iv) Tenant and Seller shall have entered into the Lease Termination Agreements and/or Lease Assignments, as the case may be.
(v) Prior to the expiration of the Due Diligence Review Period, Seller and Buyer Related Person) asserting that shall have agreed upon the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach form of the Seller Warranties by Carry-back Loan Documents, which Seller Carry-back Loan Documents shall be executed and delivered concurrently with the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Closing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement (Nationwide Health Properties Inc)
Conditions. 8.1 Notwithstanding anything to the contrary in (A) Completion of this Agreement, Completion Agreement is conditional upon satisfaction the following conditions being fulfilled and remaining fulfilled as at Completion:-
(i) where required pursuant to the terms of any contracts, agreements or waiver any loan or finance documentation, the counter parties thereto having confirmed that they will not seek to terminate or vary any term therein or make a claim thereunder as a result of, or treat as a breach of any terms thereof, any change in the boards of directors, the management or shareholding of the Company any other changes or transactions contemplated under or arising out of or in connection with this Agreement and all other necessary Consents and authorisations which may be required to implement and complete this Agreement having been obtained;
(ii) all Consents which are required for the entering into or the implementation or completion of this Agreement by the relevant Vendors, and/or the Company having been obtained, including, without limitation, the Consents (if appropriate or required) of the respective shareholders and the respective boards of directors of the relevant Vendors and the Company and other relevant third parties in the PRC which are required for the entering into and the implementation of this Agreement having been made; all applicable statutory or other legal obligations having been complied with;
(iii) all government or regulatory approvals required in the PRC by the Vendors and the Company in respect of the sale and purchase of the Sale Capital on the terms set out in this Agreement having been obtained;
(iv) the term of the Joint Venture Contract having been legally and validly extended from 20 years to 31 years;
(v) the Supplemental Contract having been entered into by the relevant parties;
(vi) the Articles of Association having been revised to reflect the corporate changes caused by the Supplemental Contract;
(vii) resolutions having been passed by all the directors of the Company approving:
(a) the execution of the Supplemental Contract;
(b) the revision of the Articles of Association of the Company referred to in Sub-clause 2(vi) above;
(c) the transfer of an aggregate 60% of the registered capital of the Company from the Vendors to the Purchaser;
(d) the appointment of a new Chairman and legal representative nominated by the Purchaser, and the appointment of new directors in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”9(A)(ii)(a);
8.1.2 (e) such change of the Seller authorised users of the Company's bank accounts and chops (with effect from Completion) as the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties Purchaser may agree to in writingrequest;
8.1.3 (viii) Execution of necessary documents by the Restructuring shall have been completed original approval authority in the PRC approving:-
(a) the Supplemental Agreement;
(b) the revision of the Articles of Association of the Company in accordance with Error! Reference source not found. (RestructuringSub-clause 2(vi) (the “Restructuring Condition”)above;
8.1.4 each (c) the transfer of an aggregate of 60% of the actions set out registered capital of the Company from the Vendors to the Purchaser;
(d) the extension of the term of the Joint Venture Contract referred to in Error! Reference source not found. Clause 2(A)(iv) above;
(DD Follow-up Actionsix) the issuance by the State Administration of Industry and Commerce of the PRC of an amended business licence of the Company; and
(x) the Purchaser in its absolute discretion notifying the Vendors in writing of its readiness to complete.
(B) Each of the Vendors and the Purchaser (in so far as it is within their respective powers and capacities so to do) shall have been fully performed provide all assistance, where relevant, as may be reasonably required by the Seller and/or any Group Company or other parties hereto to procure the relevant Former Group Company, as applicable, to the reasonable satisfaction fulfillment of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement Conditions set out in Clause 9 2(A).
(Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (aC) any claim having been made by any third party asserting that such person is entitled to The Purchaser may waive all or any part of or interest such Conditions at any time by notice in writing to the Sale Shares, and/or Vendors.
(D) In the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting event that the Transaction Documents Conditions shall not have been fulfilled, or the Transactions contemplated hereby are illegal waived on or invalid before 15th September, 1999, or violate the rights of any person; Completion shall not have taken place on or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided before that for purposes of this Clause 8.1.9 “material breach” means a breach date (or series of breaches) of any Seller Warranties for which such later date as the aggregate liability of Vendors and the SellerPurchaser may determine), if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding all documents executed ancillary thereto shall lapse and be of no further effect, and no party to this Agreement shall have any claim against or liability to the breach(esother party but without prejudice to the rights and obligations of the parties under Clause 5(C)), could reasonably be expected to exceed [***];.
Appears in 2 contracts
Sources: Purchase Agreement (Belair Enterprises Inc), Purchase Agreement (Belair Enterprises Inc)
Conditions. 8.1 Notwithstanding anything Buyer’s duty, obligation and responsibility to purchase the contrary in Property or otherwise to perform any duty, obligation or responsibility under this Agreement, Completion is conditional Agreement shall be expressly conditioned upon satisfaction or waiver (in accordance with Clause 8.6) the fulfillment of each of the following conditions precedent on or before the expiration of the Due Diligence Period, unless another time period is specified below:
a. To the extent that such documents are applicable, exist, are in Seller’s custody or possession, or are available to Seller, Buyer’s review and approval of the documents, information and materials concerning or related to the Property contained in the electronic data room set up by Seller and to which Buyer has had access prior to the Effective Date (collectively the “ConditionsProperty Documents”). Under no circumstances shall Seller be obligated to make available to Buyer any documents protected by attorney-client privilege or attorney work product protection, tax returns, internal memoranda, appraisals, or other proprietary documentation and/or information;
b. Seller shall provide Buyer with the Tenant Estoppel Certificate completed and then executed by Tenant;
c. On or before the expiration of the Title Review Period, to review same and approve or disapprove of the Preliminary Title Report and all exceptions to title shown therein;
d. Buyer’s inspection and approval in Buyer’s sole and absolute discretion of any and all access, economic, endangered plant or animal species or habitat issues or restrictions, engineering, entitlement, environmental, land use, legal, permitting, physical, soils, surveying, utility, water and zoning matters relating to the Property including, without limitation, Buyer’s approval of the following: (i) the feasibility of the Property for Buyer’s anticipated use of the Property; (ii) Buyer’s review and approval of a soils report issued at Buyer’s sole cost and expense by a soils engineer designated by Buyer, and a Phase 1 environmental site assessment issued at Buyer’s sole cost and expense by an environmental consultant designated by Buyer; (iii) Buyer’s inspection and approval of the physical condition of the Property and its appurtenances, including any water ▇▇▇▇▇ and irrigation systems, including current water volume, historic well pumping records, if any, and equipment condition; and, (iv) the results of any inspection, test, examination, audit, study, review, analysis or other review conducted by Buyer, including, without limitation, site surveys (including an ALTA survey, if any), zoning and land use restrictions, public and private, present and future access, geological and environmental testing, drainage conditions, the presence of Hazardous Materials, and any other condition or circumstance on or relating to the Property which may affect the Property or Buyer’s anticipated use of the Property; and,
e. The commitment of the Title Company to issue, subject only to payment of the normal premium, and the issuance of the Title Policy upon the Closing, and Seller shall have delivered to the Title Company such documents as are reasonable and customary in similar transactions, and shall have performed such other acts, as the Title Company shall reasonably require in order to issue the Title Policy. The failure of Buyer to provide written notice to Seller that the Property is acceptable on or before the expiration of the Due Diligence Period shall be deemed by the Longstop Date:
8.1.1 the Buyer having received the written parties as Buyer’s approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject Property pursuant to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”Section 4.2(b);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];.
Appears in 2 contracts
Sources: Real Property Purchase and Sale Agreement (GLADSTONE LAND Corp), Real Property Purchase and Sale Agreement (GLADSTONE LAND Corp)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Group referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) the due execution of a share transfer agreement by the Vendors and the Purchaser's Nominees;
(c) if so required, passing of necessary resolutions by directors of the Purchaser at a board meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(d) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required under US securities laws or other relevant laws, regulations and rules in US in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (e) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or the change of control of the Company having been obtained from the relevant PRC governmental authorities, including but not limited to the Buyernew business license for the Company;
(f) and, if any such conditions or restrictions are imposed, or otherwise affect or relate the Purchaser having obtained a legal opinion issued by a lawyer (acceptable to the Seller Purchaser) qualified to practice PRC laws (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the sale and purchase of the Sale Interests;
(iii) the appointment of Director(s) nominated by the Purchaser become effective;
(iv) no change in the permitted scope business of the Company after the transfer of the Sale Interests;
(v) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a legal opinion issued by a US legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of the Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the Purchaser;
(h) the Vendors having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (i) the Seller due execution of a share transfer and pledge agreement by the Purchaser's Nominees and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (j) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all time between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clauses 3.1(e) above and shall keep the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these relevant regulatory authorities.
3.3 In relation to Clause 3.1(a), the Vendors shall give and shall procure that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all members of the Group and all such information relating to the Group as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Group and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Group shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 10.
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);3.1 . If
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendors in writing at any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right of termination under this Agreement obligations and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];liabilities.
Appears in 2 contracts
Sources: Agreement for Sale and Purchase of Certain Interest in the Registered Capital (Hartcourt Companies Inc), Agreement for Sale and Purchase of Certain Interest in the Registered Capital (Hartcourt Companies Inc)
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Completion is conditional Buyer's obligation to purchase a particular Property shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Datewith respect to such Property:
8.1.1 (i) The willingness, upon the Buyer having received sole condition of the written approval payment of FAS any regularly scheduled premium, of the Title Company (or another title insurance company reasonably satisfactory to Buyer) to issue Owner's Policies of Title Insurance in the form of the Title Policy issued to the applicable Transferor with respect to each Property in connection with the initial public offering of the stock of the Company (as herein defined) ("IPO") or, if no Title Policy was issued for a Property in connection with the IPO, then the Title Policy issued upon the acquisition of the Property by the Buyer of the Sale Shares without any conditions or restrictions applicable Transferor (or subject the party that contributed such Property to the Transferor at the IPO (a "Contributor") (or such conditions or restrictions which are other form(s) as may be reasonably satisfactory to Buyer)), and with all of the endorsements issued in any Title Policy issued by the Title Company for a particular Property insuring Buyer (or Buyer's permitted assignee or nominee) andthat title to the applicable Real Property is vested of record in Buyer (or Buyer's permitted assignee or nominee) on the Closing Date subject only to the printed conditions and exceptions of such policies (but deleting (by endorsement or otherwise), where permitted under applicable laws or regulations and at Buyer's expense, any co-insurance, creditors rights and so-called "standard" exceptions) and the Permitted Exceptions applicable to such Real Property. Transferors will cooperate and use reasonable efforts (but at no out-of-pocket cost to Transferors) to assist Buyer in obtaining all endorsements contained in the Title Policies (whether issued in connection with the IPO or an acquisition). Without limiting the foregoing, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) Title Company (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicableand, to the reasonable satisfaction extent applicable, a different title insurance company if one other than the Title Company previously issued any such endorsement) refuses to issue such endorsement to Buyer at closing with respect to a matter insured against under the Title Policies, upon request of Buyer, Transferors will assert a claim against such insurer at Buyer's expense and direction with the goal of enabling Buyer to obtain such endorsement from such title company. Nothing contained in the second, third, or fourth sentence of this Section 3.1(a)(i) shall be construed as expanding the provisions of the first sentence of this Section 3.1(a)(i) or Section 2.6 or be considered a condition to Buyer's obligation to purchase any of the Properties and Transferors shall have no liability whatsoever if they are unable to cause a title company to issue any such endorsement;
8.1.5 [***];(ii) With respect to a particular Property, such Property has not been designated a Deleted Property pursuant to this Agreement; and
8.1.6 the Seller having complied in (iii) Transferors' performance or tender of performance of all material respects with its covenants, obligations and undertakings under this Agreement set out with respect to the applicable Property, including Transferors' covenants under Section 4.2 with respect to such Property.
(b) Notwithstanding anything in Clause 9 (Conduct this Agreement to the contrary, Transferors' obligation to sell or exchange a particular Property or all of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none the Properties, as the case may be, shall be subject to and contingent upon the satisfaction or waiver of the following shall have occurred prior conditions precedent:
(i) With respect to a particular Property, such Property has not been designated a Deleted Property pursuant to this Agreement; and
(ii) Buyer's performance or as tender of the date performance of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination obligations under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Amb Property Corp), Purchase and Sale Agreement (Amb Property Corp)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, Completion
3.1 Closing is conditional upon satisfaction on the following Conditions being satisfied or waiver waived by the Subscriber (as applicable) in accordance with Clause 8.6this Agreement:
3.1.1 the Independent Shareholders having passed the necessary resolution(s) at the SGM to approve this Agreement and the transactions contemplated hereunder;
3.1.2 the Listing Committee having granted the approval for the listing of, and permission to deal in, the Subscription Shares and such approval not having been withdrawn or revoked;
3.1.3 the current listing of the Shares on the Hong Kong Stock Exchange not having been cancelled or withdrawn;
3.1.4 each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Company Warranties remaining true and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied accurate in all respects and not misleading in any respect as at Closing;
3.1.5 the Company not having breached the Company Pre-Completion Undertakings in any respect, and not having materially breached or failed to perform in any material respects with respect its covenants, other obligations and or undertakings under this Agreement prior to Closing;
3.1.6 all consents, approvals, permits, authorisations or clearances (as the case may be) that the Company reasonably considers necessary pursuant to applicable laws, regulations or rules (including but not limited to the Listing Rules) for its execution, implementation and completion of this Agreement having been obtained, and all such consents, approvals, permits, authorisations and clearances not having been revoked or withdrawn at any time before Closing;
3.1.7 all consents, approvals, permits, authorisations or clearances (as the case may be) that the Subscriber reasonably considers necessary pursuant to applicable laws, regulations or rules (including but not limited to the Listing Rules) for its execution, implementation and completion of this Agreement having been obtained, and all such consents, approvals, permits, authorisations and clearances not having been revoked or withdrawn at any time before Closing; and
3.1.8 from the date of this Agreement up to and at the Closing Date, there not having occurred any change (nor any development or event involving a prospective change), in the business, assets and liabilities, condition (financial or otherwise), business operations, results of operations or general affairs of the Company or the Group taken as a whole (whether or not arising in the ordinary course of business), which, in the reasonable opinion of the Subscriber, has or would have a Material Adverse Effect.
3.2 The Company shall use its reasonable endeavours to achieve satisfaction of each Condition set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior Clauses 3.1.1 to or 3.1.3 as of soon as possible after the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding in any event by not later than 11:59 pm on the breach(es))Longstop Date, could reasonably be expected to exceed [***];and each Condition set out in Clauses
Appears in 1 contract
Sources: Share Subscription Agreement
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Group referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) the due execution of a share transfer agreement by the Vendors and the Purchaser's Nominees;
(c) if so required, passing of necessary resolutions by directors of the Purchaser at a board meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(d) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required under US securities laws or other relevant laws, regulations and rules in US in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (e) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or the change of control of the Company having been obtained from the relevant PRC governmental authorities, including but not limited to the Buyernew business license for the Company;
(f) and, if any such conditions or restrictions are imposed, or otherwise affect or relate the Purchaser having obtained a legal opinion issued by a lawyer (acceptable to the Seller Purchaser) qualified to practice PRC securities laws (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the sale and purchase of the Sale Interests;
(iii) the appointment of Director(s) nominated by the Purchaser become effective;
(iv) no change in the permitted scope business of the Company after the transfer of the Sale Interests;
(v) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a legal opinion issued by a US legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of the Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the Purchaser;
(h) the Purchaser having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (i) the Seller due execution of a share transfer and pledge agreement by the Purchaser's Nominees and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (j) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all time between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clauses 3.1(e) above and shall keep the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these relevant regulatory authorities.
3.3 In relation to Clause 3.1(a), the Vendors shall give and shall procure that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all members of the Group and all such information relating to the Group as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Group and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Group shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 10.
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);3.1. If
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendors in writing at any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right of termination under this Agreement obligations and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];liabilities.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 5.1 Closing shall be subject to the contrary following Conditions being satisfied (or waived by the relevant party (as applicable)) save, in this Agreementeach case, Completion to the extent that the same is conditional only upon satisfaction or waiver of any of the Conditions in accordance with this Clause 5 or any of the Transaction Documents:
(a) no Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the Transactions as illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the Transactions contemplated hereunder to be rescinded following Closing thereof;
(b) the Transaction Documents shall have been duly executed and delivered; and
(c) no enactment or proposal of any legislation having occurred (including any subordinate legislation) which would prohibit, materially restrict or materially delay the implementation of the Transactions.
5.2 The obligation of the Seller to consummate the Closing is subject to the satisfaction or waiver of the following as further conditions to Closing:
(a) the passing of resolutions of the Board of Directors of the Purchaser approving the Transactions;
(b) the Seller having received, to its reasonable satisfaction, the Initial Deposit in accordance with Clause 8.64.1, subject to Clause 4.2;
(c) the Seller having received written confirmation, to its reasonable satisfaction, that the Deposit has been deposited in full into the Escrow Account in accordance with Clause 4.2;
(d) the Purchaser having performed all material respects of each all of its covenants and agreements in this Agreement and the Transaction Documents required to be performed by the Purchaser prior to Closing; and
(e) no person having commenced, or threatened to commence, any proceedings or investigation for the purpose of prohibiting or otherwise challenging or interfering with the Transactions.
5.3 The obligation of the Purchaser to consummate the Closing is subject to the satisfaction or waiver of the following as further conditions precedent (the “Conditions”) by the Longstop Dateto Closing:
8.1.1 (a) the Buyer having received the written approval passing of FAS in connection with the acquisition by the Buyer resolutions of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to Board of Directors of the Seller or any Seller Group Company, reasonably satisfactory to approving the Seller) (the “FAS Approval Condition”)Transactions;
8.1.2 (b) the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicableclosing, to the reasonable satisfaction of the Buyer;Purchaser, of the Restructuring (except where any part of such Restructuring is contemplated to take effect upon Closing); and
8.1.5 [***];
8.1.6 (c) the Seller having complied in performed all material respects with of all of its covenants, obligations covenants and undertakings under agreements in this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that and the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties required to be performed by the Seller having occurredprior to Closing.
5.4 If at any time the Purchaser or the Seller becomes aware of any event, provided circumstance or condition that for purposes would be reasonably likely to prevent a Condition being satisfied it shall forthwith inform the other party.
5.5 Each party shall notify the other in writing promptly upon it becoming aware that any of the Conditions have been satisfied.
5.6 No party may rely on the failure of any Condition, as the case may be, to be satisfied to excuse such party’s obligation on consummate Closing if such failure was caused by such party’s (or its Affiliates’) breach of this Clause 8.1.9 “material breach” means a breach (Agreement or series of breaches) of any Seller Warranties for which failure to satisfy the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Conditions.
Appears in 1 contract
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Completion is conditional Buyer's obligation to purchase the Sacto Portfolio shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateprecedent:
8.1.1 (i) Buyer's inspection and approval, within the Buyer having received the written approval Inspection Period, of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory all physical, environmental, economic and legal matters relating to the Buyer) andSacto Portfolio, if any such conditions or restrictions are imposed, or otherwise affect or relate pursuant to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Sections 2.3 and 2.4 above;
8.1.2 (ii) Buyer's receipt and approval, within the Seller Inspection Period, of such tenant estoppel certificates and the subordination agreements as Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties its lender may agree to in writingdeem necessary;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuringiii) (the “Restructuring Condition”);
8.1.4 The willingness of Title Company to issue for each of the actions set out in Error! Reference source not found. Properties constituting the Sacto Portfolio, upon the sole condition of the payment of its regularly scheduled premium, its American Land Title Association extended coverage Owner's Policy of Title Insurance [1970 Form] (DD Follow-up Actions) shall the "Title Policy", or if separate policies are obtained for individual Properties, the "Title Policies"), with such endorsements as may have been fully performed requested by Buyer and agreed to by Title Company during the Seller and/or any Group Company or Inspection Period (collectively, the relevant Former Group Company"Endorsements"), as applicablewith such Title Policy insuring Buyer in the amount of the Purchase Price (or, in the case of individual policies, in the amount of the portion of the Purchase Price allocated to the reasonable satisfaction applicable Property), that fee simple title to the Real Property is vested of record in Buyer on the Buyer;Closing Date subject only to the printed conditions and exceptions of such policy and the Permitted Exceptions; and
8.1.5 [***];
8.1.6 the Seller having complied in (iv) Seller's performance or tender of performance of all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct and the material truth and accuracy of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or Seller's express representations and warranties as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part this Agreement, as updated under the provision of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; Section 4.5 hereof.
(b) any claim having been made by any person (other than a Seller Related Entity Notwithstanding anything in this Agreement to the contrary, Seller's obligation to sell the Sacto Portfolio shall be subject to and contingent upon the satisfaction or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach waiver of the Seller Warranties by the Seller having occurred, provided that for purposes following conditions precedent:
(i) Buyer's performance or tender of this Clause 8.1.9 “performance of all material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination obligations under this Agreement and Completion was effected notwithstanding the breach(es)material truth and accuracy of Buyer's express representations and warranties as of the date of this Agreement and as of the Closing Date; and
(ii) The satisfaction or Buyer's written waiver of the conditions set forth in subparagraphs (a)(i), could reasonably be expected to exceed [***];(ii), (iii) and (iv) above.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Conditions. 8.1 Notwithstanding anything 11.1 This Agreement shall become effective (the “Effective Date”) as of the earlier of:
(a) the date on which (i) the United States Federal Trade Commission (“FTC”) approves this Agreement and the transactions contemplated hereby or notifies Customer or Producer that no filing under the HSR Act is required in connection with this Agreement or the transactions contemplate hereby or (ii) all waiting periods applicable to this Agreement and the contrary transactions contemplated hereby under the HSR Act shall have expired or been terminated; and
(b) March 31, 2008, unless, in the case of this Agreementclause (b), Completion is conditional upon satisfaction (i) the FTC has either (y) not approved this Agreement and the transactions contemplated hereby by March 31, 2008 (or waiver all waiting periods applicable to this Agreement and the transactions contemplated hereby under the HSR Act shall have not expired or been terminated) or (z) on or prior to March 31, 2008, disapproved this Agreement or the transactions contemplated hereby, and (ii) on or prior to March 31, 2008, Customer has provided Producer with written notice, in accordance with the provisions of Clause 8.620 (Notices) of each its election to terminate this Agreement and paid Producer a termination fee in the amount of $6 million; provided, however, that no such notice of termination may be given by Customer prior to the following conditions precedent earlier of March 20, 2008 and the date Customer receives written notice from the FTC that it has disapproved this Agreement or the transactions contemplated by this Agreement.
11.2 Each Party agrees to use commercially reasonable efforts to take (a) all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on it with respect to the “Conditions”transactions contemplated by this Agreement (which actions shall include, without limitation, furnishing all information required under the HSR Act and in connection with Authorizations and other official requirements) by and will promptly cooperate with and furnish information to the Longstop Date:
8.1.1 the Buyer having received the written approval other Party in connection with any such requirements imposed upon it or any of FAS its affiliates in connection with the acquisition transactions contemplated by this Agreement and (b) all reasonable actions necessary to obtain (and will cooperate with the Buyer other Party in obtaining) any Authorization of any Governmental Entity or other public or private third party required to be obtained or made by it in connection with the transactions contemplated by this Agreement or the taking of any action contemplated thereby 14 or by this Agreement. Each of the Sale Shares without any conditions Parties shall (i) use all reasonable efforts to comply as expeditiously as possible with all lawful requests of the FTC or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to Antitrust Division of the Seller or any Seller Group Company, reasonably satisfactory to the Seller) Department of Justice (the “FAS Approval ConditionAntitrust Division”);) for additional information and documents and (ii) to request early termination of the waiting period and not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other Party hereto. Unless prohibited by Applicable Law, each Party shall promptly forward to the other Party any correspondence it receives from the FTC or the Antitrust Division regarding the approval or disapproval of the formation of the Joint Venture or the transactions contemplated by this Agreement.
8.1.2 11.3 The commencement of the Seller Parties’ obligations under this Agreement shall be subject to the condition that each approval and consent required to be obtained by Producer or any of its Affiliates from third parties in connection with the Buyer transactions contemplated by this Agreement (other than any consent or approval required from a third party to assign any of the Assigned Contracts) shall have entered into all Transaction Documents been duly obtained by Producer and such Transaction Documents remain each of its Affiliates, as the case may be, and shall be in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Sources: Exclusive Supply Agreement (Sterling Chemicals Energy Inc)
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Completion is conditional Buyer's obligation to purchase the Hotels shall be subject to and contingent upon the satisfaction or waiver of the following conditions precedent:
(in accordance with Clause 8.61) Buyer's inspection and approval, within the Inspection Period, of each of the following documents described in Section 3.1 above;
(2) Buyer's inspection and approval, within the Inspection Period, of all other physical, environmental, economic and legal matters relating to the Hotels, pursuant to Section 3.1(b) above,
(3) the willingness of Title Company to issue, upon the sole condition of the payment of its regularly scheduled premium, its standard American Land Title Association owners form policy of title insurance for the Hotel ("Buyer's Title Policies"), insuring Buyer in the amount of the Purchase Price allocated to such Hotel that title to the Land and Improvements for each Hotel is vested of record in Buyer on the Closing Date, subject only to the printed conditions precedent and exclusions of such policy and the Permitted Exceptions;
(4) the “Conditions”continued operation of the Hotels during the Contract Period in accordance with the provisions of Section 5.2;
(5) the approval of this transaction by the Longstop Board of Trustees of Innkeepers USA Trust, which approval shall be deemed given by Buyer's execution of this Agreement;
(6) Seller shall have delivered to Buyer on or before the Closing Date, all of the documents and other information required of Seller under Sections 3.1(a) and 7.1;
(7) Seller shall have delivered to Buyer a written waiver by Operator of any requirement to complete on or before the Closing Date upgrades to the rooms at the Columbus East Hotel known as the "Generation V Package";
(8) Seller's representations and warranties set forth in Section 5.1 shall be true and correct in all material respects as of the date hereof and as of the Closing Date and Seller shall have performed in all material respects its covenants and other obligations under this Agreement; and
(9) Seller shall have delivered to Buyer, or shall be prepared to deliver to Buyer at each Hotel immediately following the closing:
8.1.1 (A) Certificate(s)/Registration of Title for any vehicle owned by the Buyer having received the written approval of FAS Seller and used in connection with the acquisition by Hotels;
(B) All certificates of occupancy for the Buyer Hotels which are in Seller's possession; and
(C) All books, records, operating reports, Operating Agreements, files and other materials in Seller's possession or control which are necessary to maintain continuity of operation of the Sale Shares without any conditions or restrictions Hotels.
(or b) Notwithstanding anything in this Agreement to the contrary, Seller's obligation to sell the Hotels shall be subject to such conditions and contingent upon the satisfaction or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none waiver of the following conditions precedent:
(1) the approval of this Agreement by Seller's Investment Committee, which approval shall have occurred be deemed given by Seller's execution of the Agreement;
(2) Buyer's timely approval of the conditions set forth in Sections 4.1(a)(1) and (2); and
(3) either the delivery to Seller of a written release by Operator of all obligations under the Management Agreements from and after the Closing Date or satisfactory assurances that Seller will incur no liability in connection with the termination of the Management Agreements other than the obligation to pay management fees and to reimburse expenses of Operator attributable to the period prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Metric Partners Growth Suite Investors Lp)
Conditions. 8.1 Notwithstanding anything 6.1. Conditions to Obligations of the Purchaser and the Company at Each Closing . The obligations of the Purchaser and the Company to consummate the transactions contemplated hereby to be consummated at each Closing are subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) at or prior to the applicable Closing Date of each of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 (a) no preliminary or permanent injunction or other Order by any Governmental Entity which prevents the Buyer having received consummation of the written approval transactions contemplated hereby shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction or Order lifted);
(b) the waiting period applicable to the consummation of FAS the transactions contemplated hereby under the HSR Act shall have expired or been terminated;
(c) no statute, rule, regulation or other Law shall have been enacted by any Governmental Entity which would prevent or make illegal the consummation of the transactions contemplated by this Agreement;
(d) any Consents, Filings and Approvals that are necessary for the consummation of the transactions contemplated by this Agreement shall have been made or obtained except where (i) the Company's failure to make or obtain such Consents, Filings and Approvals would not have a Material Adverse Effect or a material adverse effect on the Company's ability to perform its obligations under this Agreement or (ii) the Purchaser's failure to obtain such Consents, Filings and Approvals would not have a material adverse effect on the Purchaser's ability to perform its obligations under this Agreement; and
(e) no suit, claim, investigation, action or other proceeding shall be overtly threatened or pending against the Purchaser or the Company or any Subsidiary before any Governmental Entity which reasonably could be expected to result in the restraint or prohibition of any such party, or the obtaining of damages or other relief from any such party, in connection with this Agreement or the acquisition other Transaction Documents or the consummation of the transactions contemplated hereby or thereby.
6.2. Additional Conditions to Obligations of the Purchaser at Each Closing. The obligations of the Purchaser to consummate the transactions contemplated hereby to be consummated at each Closing shall be subject to the satisfaction or waiver at or prior to the applicable Closing Date of each of the following additional conditions:
(a) the representations and warranties of the Company contained in this Agreement shall have been true and correct in all respects at and as of the date they were made, and shall be true and correct in all respects at and as of such Closing Date (unless any such representations and warranties are stated to be made as of a date other than the date hereof, in which case they shall have been true and correct in all respects as of that date); provided, that this condition shall be deemed satisfied unless the failure of such representations and warranties to be true and correct in all respects (without regard to any qualifiers with respect to materiality or Material Adverse Effect set forth therein) would have, in the aggregate, a Material Adverse Effect or would have, in the aggregate, a material adverse effect on the Company's ability to perform its obligations under this Agreement;
(b) the Company shall have performed, in all material respects, all of its obligations contemplated herein to be performed by the Buyer Company on or prior to such Closing Date;
(c) from the date hereof through such Closing Date, there shall not have occurred, and be continuing, a Material Adverse Effect;
(d) the Series B Certificate of Designation with respect to the series of Preferred Shares to be issued at such Closing and as dividends on Preferred Shares of such series shall have been duly filed with the Delaware Secretary of State in accordance with the laws of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) andState of Delaware, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain Series B Certificate of Designation shall be in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 (e) the Restructuring Conversion Shares issuable upon conversion of the Preferred Shares and the Warrant Shares issuable upon exercise of the Warrants shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”)duly authorized and reserved for issuance;
8.1.4 each (f) with respect to the purchase of the actions set out in Error! Reference source Preferred Shares and Warrants by Holding at any Closing that occurs after the Initial Closing Date, the stockholders of Powertel, Inc. shall have approved the acquisition of Powertel, Inc. by VoiceStream Wireless Corporation and/or Deutsche Telecom AG;
(g) the trading of the Common Stock shall not found. have been suspended by the SEC or the Nasdaq Stock Market or by any other automated quotation system on which the Common Stock is quoted or by any national securities exchange on which the Common Stock is listed;
(DD Follow-up Actionsh) the Series A Holder Approval and the Company Stockholder Approval shall have been fully performed by obtained;
(i) the Seller and/or any Group Company shall have obtained the waiver or amendment of provisions of the relevant Former Group Company, as applicable, agreements listed on Exhibit 6.2
(i) to the reasonable satisfaction of extent specified in such Exhibit; and
(j) the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of Company shall have delivered the following shall have occurred prior to or the Purchaser:
(i) an officer's certificate certifying as of to the date of Completion: Company's compliance with the conditions set forth in clauses (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares), and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or and (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued thatthis Section 6.2;
8.1.9 no material breach (ii) a counterpart of the Seller Warranties Registration Rights Agreement Registration Rights Agreement5.2(g)executed by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach Company;
(or series of breachesiii) of any Seller Warranties for which the aggregate liability certificates and Warrants specified in Section 1.4;
(iv) an opinion of the SellerCompany's independent counsel in substantially the form of, if or as to substantially the Buyer were to bring a Claim(smatters set forth in, Exhibit 6.2(j)(iv); and
(v) (assuming for these purposes that the Buyer did not have any right of termination under such other documents as may be required by this Agreement and Completion was effected notwithstanding or reasonably requested by the breach(es)), could reasonably be expected to exceed [***];Purchaser.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything Mutual Conditions Precedent
6.1 The respective obligations of the Parties hereto to complete the transactions contemplated by this Agreement shall be subject to the contrary in this Agreementsatisfaction, Completion is conditional upon satisfaction on or waiver (in accordance with Clause 8.6) of each before the Effective Date, or earlier date where specified, of the following conditions precedent (the “Conditions”) precedent, each of which may only be waived in full or in part by the Longstop Datemutual consent of UEC and Concentric (and only to the extent such waiver is permitted by applicable Law):
(a) the Board of Directors of UEC will have determined that the Merger is fair to the UEC Shareholders and is in the best interests of UEC;
(b) The Board of Directors of Concentric will have:
8.1.1 (i) determined that the Buyer having Merger is fair to the Concentric Shareholders and is in the best interests of Concentric;
(ii) to the extent required by law or if determined by UEC and Concentric to be appropriate in the circumstances, received a fairness opinion prepared for Concentric to the written approval effect that, subject to the assumptions, qualifications and limitations relating to such opinion, as of FAS the Execution Date, the Merger is fair from a financial point of view to holders of Concentric Shares; and
(iii) determined to recommend that the Concentric Shareholders vote in favor of the Merger;
(c) the Merger shall have been approved at the Concentric Meeting by more than 50% of the votes cast by the Concentric Shareholders represented in person or by proxy at the Concentric Meeting which actually vote in favor or against the Concentric Merger Resolutions;
(d) each of UEC and Concentric shall have completed their due diligence inspection conducted in conjunction with the Merger and the transactions contemplated herein to the satisfaction of UEC and Concentric, respectively;
(e) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding, of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with any Regulatory Approvals which have been obtained;
(f) all consents, waivers, permits, orders and approvals of any Governmental Entity and the expiry of any waiting periods, in connection with with, or required to permit the acquisition consummation of the Merger, the failure of which to obtain or the non-expiry of which would constitute a criminal offence, or would have a Material Adverse Effect on UEC or Concentric, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on UEC and/or Concentric;
(g) save and except for that certain and existing Involuntary Bankruptcy Petition, there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success;
(i) seeking to restrain or prohibit the consummation of the Merger or seeking to obtain from UEC or Concentric any damages that are material in relation to Concentric taken as a whole;
(ii) seeking to prohibit or materially limit the ownership or operation by UEC of any material portion of the Business or Assets of Concentric or to compel UEC to dispose of or hold separate any material portion of the Business or Assets of Concentric, as a result of the Merger;
(iii) seeking to prohibit UEC from effectively controlling in any material respect the Business or operations of Concentric; or
(iv) there is in effect any other circumstance which is reasonably likely to have a Material Adverse Effect on UEC or Concentric or the Surviving Corporation;
(h) all necessary Regulatory Approvals shall have been obtained; and
(i) neither Party shall have given notice to the other within 30 days of the Execution Date terminating this Agreement based on the results of the due diligence investigation conducted by the Buyer Party giving notice. It is the Parties' intention that each Party shall have a due diligence investigation period, expiring 30 days from the Execution Date, in order to conduct such due diligence investigations as the Parties deem necessary to determine the feasibility, economic or otherwise, of the Sale Shares without transactions contemplated in this Agreement. Either Party may terminate this Agreement at any conditions or restrictions (or subject to time within such conditions or restrictions which are reasonably satisfactory 30 day period by delivery to the Buyer) andother of written notice of termination of this Agreement. Upon such termination, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer this Agreement shall have entered into all Transaction Documents and such Transaction Documents remain in full be of no further force and effect, subject to any amendments thereto both Parties . Either Party may agree to waive the due diligence period in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with writing at its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];option.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to consummate the transactions contemplated by this Agreement shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each fulfillment of the following conditions precedent conditions:
(i) The representations and warranties of the “Conditions”Holder set forth in Section 3 hereof shall be true and correct on and as of the Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Holder in connection with the acquisition consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Buyer of Company or the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Holder shall have been obtained in form and substance reasonably satisfactory to the BuyerCompany.
(iii) andThe Holder shall have delivered to the Company for cancellation its Notes or an affidavit of loss and indemnity.
(iv) all governmental or regulatory authorizations, if any such conditions or restrictions are imposedapprovals, including the approval of the TSXV, or otherwise affect or relate permits that are required for the issuance of the Conversion Shares have been obtained
(v) The Company shall have obtained the necessary approvals for the listing of the Common Stock on the NASDAQ Capital Market and shall have consummated a public offering of its securities as described in its Registration Statement on Form S-1, filed with the SEC on December 21, 2012.
(b) The obligations of the Holder to consummate the transactions contemplated by this Agreement shall be subject to the Seller fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and as of the Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any Seller Group Company, governmental or regulatory authority or other third party required to be obtained by the Company or the Holder shall have been obtained in form and substance reasonably satisfactory to the SellerHolder.
(iii) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer The Company shall have entered into all Transaction Documents obtained the necessary approvals for the listing of the Common Stock on the NASDAQ Capital Market and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed consummated a public offering of its securities as described in accordance its Registration Statement on Form S-1, filed with Error! Reference source not found. the SEC on December 21, 2012.
(Restructuringiv) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) The Holder shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, delivered to the reasonable satisfaction Company for cancellation its Notes or an affidavit of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations loss and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];indemnity
Appears in 1 contract
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Completion is conditional Partnership's obligation to accept the Property shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent on or before the Closing Date, any or all of which may be waived by Partnership in its sole discretion:
(i) The willingness of Title Company to issue its American Land Title Association extended coverage Owner's Policy of Title Insurance [1992 Form] (the “Conditions”"Owner's Policy"), insuring Partnership in the amount of $60,000,000 that title to the Real Property is vested of record in Partnership on the Closing Date, subject only to the standard printed conditions and exceptions of such policy and to the Permitted Exceptions;
(ii) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer Contributor's execution and delivery of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to Lease on the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Closing Date;
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuringiii) (the “Restructuring Condition”);
8.1.4 each All of the actions set out representations and warranties of Contributor contained in Error! Reference source not found. (DD Follow-up Actions) this Agreement shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied be true and correct in all material respects as of the Closing Date;
(iv) The physical condition of the Real Property shall be in as good a condition substantially on the Closing Date as on the date of this Agreement, construction progress, reasonable wear and tear excepted;
(v) No proceeding shall have been commenced against Contributor under the federal Bankruptcy Code or any state law for relief of debtors;
(vi) Partnership shall have obtained the Construction Financing on rates and terms acceptable to Partnership and Contributor, in their reasonable discretion; the Title Company shall be prepared to issue any title policy required by the lender under the Construction Financing ("Lender"), including any endorsements to said policy; and funding under the Construction Financing shall close simultaneously with its covenants, obligations and undertakings under the Closing.
(b) Notwithstanding anything in this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none to the contrary, Contributor's obligation to transfer the Property shall be subject to and contingent upon the satisfaction of the following conditions precedent on or before the Closing Date, any or all of which may be waived by Contributor in its sole discretion:
(i) The satisfaction or Partnership's written waiver of the condition set forth in Section 3.1 (a)(i) above;
(ii) Partnership's execution and delivery of the Lease on the Closing Date;
(iii) All of the representations and warranties of Partnership contained in this Agreement shall have occurred prior to or be true and correct in all material respects as of the date of Completion: Closing Date; and
(aiv) Partnership shall have obtained the Construction Financing on rates and terms acceptable to Partnership and Contributor, in their reasonable discretion; the Title Company shall be prepared to issue any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties title policy required by the Seller having occurredLender, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of including any Seller Warranties for which endorsements to said policy; and funding under the aggregate liability of Construction Financing shall close simultaneously with the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Closing.
Appears in 1 contract
Sources: Contribution Agreement (Inhale Therapeutic Systems Inc)
Conditions. 8.1 Notwithstanding (a) Each Seller’s obligation to sell its Subject Securities at the Closing and consummate the applicable Transaction is subject to the fulfillment to the satisfaction of the applicable Sellers, or the waiver by such Seller, as applicable, of the following conditions:
(i) in respect of the BVI Transaction and the BVI Sellers, the BVI Court Sanction shall have been obtained;
(ii) in respect of the Cayman Transaction and Primus, the Cayman Court Sanction shall have been obtained; and
(iii) in respect of the Transaction and the Sellers, the consummation of each of the BVI Transaction and the Cayman Transaction shall occur substantially concurrently; provided that notwithstanding anything to the contrary in this Agreement, Completion is conditional upon none of the Sellers shall waive such condition in Section 4(a)(i).
(b) The obligations of the Purchaser and the Sellers to consummate the Closing shall be further subject to satisfaction or waiver (of the condition that the PRC Competition Approval shall have been obtained by the Purchaser in accordance with Clause 8.6) of each of the following conditions precedent applicable Antitrust Laws (such condition is referred to as the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval PRC Antitrust Condition”);
8.1.2 . For the Seller and purpose of this Agreement, (i) “Antitrust Laws” means the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effectPRC laws relating to merger control, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 competition, restrictive trade practices, anti-trust, fair trading, monopolies, consumer protection or other similar matters; (ii) “PRC Competition Approval” means the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each unconditional clearance, or expiration of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Companywaiting period, as applicablethe case may be, to under the reasonable satisfaction of Antitrust Laws from SAMR approving the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase PriceTransaction; (biii) any claim having been made by any person “PRC” means the People’s Republic of China (other than a Seller Related Entity or a Buyer Related Person) asserting that which, solely for the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 Agreement, excludes Hong Kong, Macau and Taiwan); and (iv) “material breachSAMR” means a breach (or series of breaches) of any Seller Warranties the State Administration for which the aggregate liability Market Regulation of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];PRC.
Appears in 1 contract
Sources: Securities Purchase Agreement (Centurium Capital Partners 2018, L.P.)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 3.1 Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) the fulfilment of each of the Conditions as follows:-
(a) The Purchaser shall have received an opinion from Garretts, the Company's solicitors, in relation to the issued share capital of the Company substantially in the form attached hereto as Exhibit 6;
(b) The Purchaser shall have participated in discussions with TI and shall, in the opinion of the Purchaser, be satisfied that each Group Company and TI will have a satisfactory business relationship following conditions precedent the Completion. Furthermore, TI shall confirm in terms which are satisfactory to the Purchaser that the Company may provide the Purchaser with full access from and after the fifteenth day following the date hereof to all TI=s Intellectual Property in the possession of, or under the control of, any Group Company;
(c) Each of the “Conditions”Principal Management Employees of the Company shall have executed and delivered service agreements in each case, substantially in the form of Exhibit 2 conformed in each case as per the employee term sheet and notes attached as Exhibit 3;
(d) The Board of Directors of the Purchaser shall have adopted a resolution approving the terms of this agreement and duly authorising the Purchaser to perform its obligations under this agreement and to take such further actions as are reasonably necessary to consummate the transactions contemplated by this agreement;
(e) The Purchaser shall have completed all its business, legal, accounting and other due diligence with respect to the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Group and shall, in connection its sole judgment, be satisfied with the acquisition by results thereof;
(f) No event or events shall have occurred, or be reasonably likely to occur, which, individually or in the Buyer of aggregate, have, or could have, a Material Adverse Effect;
(g) The Purchaser, the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Vendors and each Group Company shall have received, each in a form reasonably satisfactory to the BuyerPurchaser, all authorisations, consents, orders and approvals of all governmental or regulatory authorities and all third party consents which the Purchaser deems necessary or desirable for the consummation of the transactions contemplated by this agreement;
(h) ▇▇▇▇▇▇ Blaxtan shall have delivered transfers in common form relating to all of the Shares owned by her in favour of the Purchaser (or as it may direct) and the share certificates relating to such Shares; and
(i) All warrants, if options (other than options granted under the Digital Projection Share Option Scheme), convertible securities or other rights, agreements, arrangements or commitments of any such conditions or restrictions are imposed, or otherwise affect or relate character relating to the Seller or share capital of any Seller Group Company, reasonably satisfactory or obligating any Vendor or any Group Company to the Seller) issue or sell any shares, or any other interest in any Group Company (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain except, in full force and effecteach case, subject pursuant to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actionsthis agreement) shall have been fully performed terminated or otherwise cancelled and shall be of no force or effect immediately prior to Completion.
3.2 The Purchaser may, in its sole discretion, by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, notice in writing to the Vendors and the Company waive any of the Conditions in whole or in part.
3.3 Each of the Principal Management Employees and the Company undertakes to use all reasonable endeavours to procure the fulfilment of the Conditions set out in paragraphs (c), (g), (h) and (i) of clause 3.1 and to consummate the transactions contemplated by this agreement, and the Principal Management Employees shall use reasonable endeavours to assist and facilitate the Purchaser in connection with clause 3.1(b).
3.4 If all of the Conditions (save for those compliance with which has been waived in accordance with the terms of this agreement) have not been fulfilled on or before September 3, 1999, this agreement shall terminate in accordance with clause 3.5 with effect from that date.
3.5 If this agreement terminates in accordance with clause 3.4 then the obligations of the parties shall automatically terminate save that the rights and liabilities of the parties which have accrued prior to termination under clauses 4.6 to 4.12 (inclusive), 9, 10 and 13 to 20 (inclusive) shall continue to subsist.
3.6 The Principal Management Employees and the Company shall keep the Purchaser advised of any Material Adverse Effect of which they become aware and the progress towards the satisfaction of their obligations under clause 3.3, and the Purchaser shall keep the Vendors and the Company advised of the progress towards the satisfaction of the Buyer;conditions under clause 3.3.
8.1.5 [***];
8.1.6 3.7 The Purchaser shall deliver to the Seller having complied in all material respects Principal Management Employees and Investors within 7 days after the meeting with its covenantsTI currently scheduled to be held on August 2, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none 1999 a letter setting forth the Purchaser's view of the following likely business relationship between TI and the Company post-Completion and whether the Purchaser knows if such view will have an impact on the valuation of the Group.
3.8 The Vendors shall have occurred procure that the Company shall be re-registered as a private limited company prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Sources: Share Purchase Agreement (Imax Corp)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 3.1 Completion is conditional upon satisfaction or waiver upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in accordance with Clause 8.6) of each respect of the following conditions precedent Company referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the Purchaser in all respects;
(b) the “Conditions”Vendor having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) by from the Longstop Date:relevant governmental or regulatory authorities in Hong Kong or Australia or Nasdaq or elsewhere under the relevant applicable laws and regulations;
8.1.1 (c) the Buyer Purchaser having received obtained all necessary consents and approvals for the written approval transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Hong Kong or elsewhere under the relevant applicable laws and regulations; and
(d) there being no breach of FAS any of the Warranties.
3.2 The Vendor shall fulfill the condition precedents mentioned in Clauses 3.1(b) above and shall keep the Purchaser fully informed of all his actions and efforts in connection with obtaining the acquisition necessary consents and approvals from the relevant regulatory authorities pursuant to Clause 3.1(b).
3.3 In relation to Clause 3.1(a), the Vendor shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the Buyer premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Sale Shares without any conditions or restrictions (or subject to Company and all such conditions or restrictions which are reasonably satisfactory information relating to the BuyerCompany as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) and, if against the Company and be permitted to take copies of any such conditions books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or restrictions are imposedthem. For the avoidance of doubt, such due diligence shall not limit or otherwise affect or relate qualify in any way the obligations and liabilities of the Vendor under Clause 6.
3.4 The Purchaser may at any time by notice in writing to the Seller or Vendor waive any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before the Completion Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendor in writing at any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right obligations and liabilities hereunder save for any antecedent breaches of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terms hereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Integrated Media Technology LTD)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Group referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects; (b) the due execution of a share transfer agreement by the Vendors and the Purchaser's Nominees;
(c) if so required, passing of necessary resolutions by directors of the Purchaser at a board meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(d) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required under US securities laws or other relevant laws, regulations and rules in US in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (e) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or the change of control of the Company having been obtained from the relevant PRC governmental authorities, including but not limited to the Buyernew business license for the Company;
(f) and, if any such conditions or restrictions are imposed, or otherwise affect or relate the Purchaser having obtained a legal opinion issued by a lawyer (acceptable to the Seller Purchaser) qualified to practice PRC securities laws (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the sale and purchase of the Sale Interests;
(iii) the appointment of Director(s) nominated by the Purchaser become effective;
(iv) no change in the permitted scope business of the Company after the transfer of the Sale Interests;
(v) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a legal opinion issued by a US legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of the Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the Purchaser;
(h) the Purchaser having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (i) the Seller due execution of a share transfer and pledge agreement by the Purchaser's Nominees and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (j) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all time between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clauses 3.1(e) above and shall keep the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these relevant regulatory authorities.
3.3 In relation to Clause 3.1(a), the Vendors shall give and shall procure that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all members of the Group and all such information relating to the Group as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Group and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Group shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 10.
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);3.1. If
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendors in writing at any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right of termination under this Agreement obligations and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];liabilities.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Group referred to in Clause 3.3 below and the ----------- results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) the due execution of a share transfer agreement by the Vendors and the Purchaser's Nominees;
(c) if so required, passing of necessary resolutions by shareholders of the Purchaser at a general meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(d) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required under US securities laws or other relevant laws, regulations and rules in US in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (e) all necessary consents permits and approval (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or the change of control of the Company having been obtained from the relevant PRC governmental authorities, including but not limited to the Buyernew business license for the Company;
(f) and, if any such conditions or restrictions are imposed, or otherwise affect or relate the Purchaser having obtained a legal opinion issued by a lawyer (acceptable to the Seller Purchaser) qualified to practice PRC securities laws (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the sale and purchase of the Sale Interests;
(iii) the appointment of Director(s) nominated by the Purchaser become effective;
(iv) no change in the permitted scope business of the Company after the transfer of the Sale Interests;
(v) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a legal opinion issued by a US legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of the Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and
(iii) all other matters reasonably requested by the Purchaser;
(h) the Purchaser having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (i) the Seller due execution of a share transfer and pledge agreement by the Purchaser's Nominees and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (j) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all time between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clauses 3.1(e) above and shall keep -------------- the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these relevant regulatory authorities.
3.3 In relation to Clause 3.1
(a) the Vendors shall give and shall procure ------------- that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all members of the Group and all such information relating to the Group as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Group and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Group shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 10. ---------
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the ----------- conditions set out in Clause 3.1 has not been made satisfied (or as the case ---------- may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence conducted according to Clause 3.3 and informs the Seller having occurredVendors in writing at ---------- any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right obligations and liabilities hereunder save for any antecedent breaches of termination the terms hereof and save that all such reasonable out-of-pocket expenses properly incurred by the Purchaser in connection with the purchase of the Sale Interests or otherwise in connection with the arrangements contemplated under this Agreement shall be borne and Completion was effected notwithstanding paid by the breach(es)), could reasonably be expected to exceed [***];Vendors on demand.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to 3.1 Completion of the contrary in this Agreement, Completion sale and purchase of the Repurchased Shares is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) having been fulfilled or waived by the Longstop Long Stop Date:
8.1.1 the Buyer having received the written (a) approval of FAS in connection with the acquisition by the Buyer board of directors of China Stem Cells (East) Company Limited, the majority shareholder of and holder of the Sale remaining issued Shares without any conditions or restrictions in the Company, of all resolutions as are necessary to approve the sale and purchase of the Repurchased Shares (or on and subject to such the terms and conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”of this Agreement);
8.1.2 (b) approval of KKR China Healthcare Investment Limited having been obtained for the Seller sale and purchase of the Buyer shall have entered into all Transaction Documents Repurchased Shares (on and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”terms and conditions of this Agreement);
8.1.4 each (c) CO having obtained a fairness opinion from its financial adviser in relation to the sale and purchase of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, Repurchased Shares under this Agreement to the reasonable satisfaction of the BuyerCO;
8.1.5 [***](d) all of the Vendor’s Warranties (which may be qualified by the Disclosures) given by Cordlife Services being true and correct in every material respect and remaining so from the date hereof until Completion;
8.1.6 (e) all necessary actions, consents, permission, approvals and authorisations having been taken or obtained as may be required in respect of the Seller having complied in all material respects with its covenants, obligations purchase of the Repurchased Shares and undertakings under the transactions contemplated by this Agreement set out in Clause 9 having been taken or obtained by the Company;
(Conduct f) Cordlife Services or its affiliates, including but not limit to Cordlife Limited, having obtained or received all consents, approvals, shareholder approvals, permission or waiver of Business before Completion; Information Rightsany third party (including any government or governmental, semi-governmental, administrative, fiscal, regulatory or judicial entity or authority, regulatory organisations established under a statute or Australian Securities Exchange or other stock exchange) as may be necessary or incidental to approve, implement or effect the sale and purchase of the Repurchased Shares (on and subject to the terms and conditions of this Agreement);
8.1.7 no Material Adverse Change having occurred;(g) the release, discharge or removal by City Challenge of all Encumbrances they hold over the Repurchased Shares; and
8.1.8 none (h) all of the following shall have occurred prior to or as Purchaser’s Warranties given by the Company being true and correct in every material respect and remaining so from the date hereof until Completion.
3.2 Each of the date Parties shall use their respective reasonable endeavours (insofar as it is within its power) to procure that the conditions stated in Clause 3.1 shall be fulfilled and/or satisfied as soon as possible after the signing of Completion: this Agreement and in any event no later than the Long Stop Date.
3.3 The Company may in its absolute discretion waive, in whole or in part, the conditions stated in Clause 3.1(c), (ad), (f) and (g) at any claim having been made time by any third party asserting that such person is entitled notice in writing to all Cordlife Services. Cordlife Services may in its absolute discretion waive, in whole or any part of or interest in part, the Sale Sharesconditions stated in Clause 3.1(a), and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) and (h) at any claim having been made time by any person (notice in writing to the Company. Any waiver so granted may be subject to such conditions as the Parties may agree and each Party shall inform the other than a Seller Related Entity or a Buyer Related Person) asserting that Party as soon as possible on the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights fulfilment of any person; of the conditions stated in Clause 3.1.
3.4 If any of the conditions stated in Clause 3.1 shall not have been fulfilled (or (cwaived by the Company or Cordlife Services as the case may be pursuant to Clause 3.3) any injunctionon or before the Long Stop Date, judgmentthis Agreement shall be null and void and have no further effect except for Clauses 1, order3.4, decree or ruling 7, 8, 12 and 20 and subject to the liability of either Party to the other in respect of any Governmental Authority shall having been issued that
8.1.9 no material antecedent breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terms hereof.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 2.1 The respective obligations of Difco to sell and Buyer to purchase the Transferred Interests and thereby to effect Completion shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent precedent:-
(a) the “Conditions”written consents and approvals of the Secretary to the implementation of all matters provided for in this agreement and in any other documents referred to herein, in a form and substance reasonably satisfactory to Difco and Buyer;
(b) any necessary consents and approvals of regulatory or governmental authorities in the United Kingdom and the EU having been given in a form and substance reasonably satisfactory to Difco and Buyer to the transactions contemplated by this agreement;
(c) execution of the Longstop Date:Assignment Documents by all parties thereto other than Difco and Buyer;
8.1.1 (d) the Buyer having received receipt of the written approval or consent of FAS every party to each Licence Interest Document whose approval or consent is required to the assignment or transfer of any Licence Interest Document pursuant to this agreement, having been given in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are form and substance reasonably satisfactory to Difco and Buyer;
(e) there having been no material breach of the Buyerrepresentations and warranties of the Parties contained in this agreement and each Party having performed in all material respects all of its covenants and agreements contained in this agreement (provided that neither Party shall be entitled to rely on its own breach or non-performance in order to delay or avoid effecting Completion);
(f) no co-venturer in relation to the Transferred Interests having successfully exercised any binding right contained in a JOA to pre-empt the sale and purchase hereby contemplated; and
(g) the effective discharge of all mortgages, if any such conditions charges (fixed or restrictions are imposedfloating), pledges, liens, security interests or otherwise other encumbrances to the extent that the same affect or relate to the Seller or any Seller Group CompanyTransferred Interests including, reasonably satisfactory to without limitation, the Seller) (Credit Agreement, the “FAS Approval Condition”);
8.1.2 1998 Debenture, the Seller Debenture and the Guaranty each as defined in the Government Agreement made between The Secretary of State for Trade and Industry, Difco and Toronto Dominion (Texas), Inc. on 28 June 2000.
2.2 If the conditions specified in clause 2.1 have not all been satisfied or waived by Buyer before 5.30 p.m. on 31 March 2001 or such other time or date as Difco and Buyer agree in writing either Party shall have the right to terminate this agreement and no Party shall have any rights or liabilities hereunder except in respect of any breach of this agreement committed before such date.
2.3 Difco and Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject each use their respective reasonable endeavours to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 procure that each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by above conditions is satisfied on or before the Seller and/or any Group Company time or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with date specified for its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];satisfaction.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 2.1 The obligations of the Subscribers under this Agreement are conditional upon:-
2.1.1 the Documents having been approved on behalf of the London Stock Exchange, the Panel on Takeovers and Mergers having approved the Prospectus and agreeing, subject to the contrary passing of Resolution 1 on a poll of independent shareholders, to waive any obligations of the Subscribers to make a general offer to shareholders of the Company under Rule 9 of the Code, in each case prior to the publication of the Documents and such approval and waiver not being withdrawn prior to this Agreement becoming otherwise unconditional in all respects;
2.1.2 two copies of the Prospectus being delivered to the Registrar of Companies for registration in accordance with Section 149 of the FSA;
2.1.3 the submission (signed where appropriate by each of the Directors) to the London Stock Exchange of all documents specified by the Listing Rules for the purposes of Section 154 of the FSA in accordance with the Listing Rules and the London Stock Exchange approving the contents of such documents or authorising the issue of such documents without such approval by not later than 10 August 1998, or such later date as the Subscribers may agree and in any event before the document concerned is issued;
2.1.4 the FHP Consultancy Agreement, the Placing Agreement, the Option Agreement, and the Service Agreements becoming unconditional in all respects other than as regards completion of this Agreement, Completion is conditional upon satisfaction and the Company or waiver HLSL or HLS or any of the members of the Group which are party thereto not having varied or agreed to vary any of the terms, or having exercised or omitted to exercise any of its rights or benefits under any of such documents or any of the Facility Documents or the Ciba Geigy Agreement (including, but without limitation, consenting to, agreeing or waiving the exercise or omission to exercise by any party to any of such documents or any of the Facility Documents or the Ciba Geigy Agreement of any of its rights, benefits or obligations under any of such documents or any of the Facility Documents or the Ciba Geigy Agreement) and the Unapproved Option Scheme Rules and the Approved Option Scheme Rules not having been varied, without in any such case the prior written consent of the Subscribers;
2.1.5 the receipt by Mr Baker on behalf of the Subscrib▇▇▇ ▇▇ ▇he NatWest Letter;
2.1.6 the passing of all of the Resolutions without amendments (save with the prior written consent of the Subscribers) on or by 2 September 1998 (or such later date as the Subscribers may agree);
2.1.7 the fulfilment by the Directors and the Company of their respective obligations under Clauses 3 and 4 and their respective obligations under Clauses 5.3, 5.5, 7.2, 8, 9, 10.4 and 13.4 in accordance with their term and in any event on or before Admission, or in any such case such later time or date as the Subscribers may agree;
2.1.8 none of the Warranties being untrue or inaccurate in any material respect at the date hereof and no fact or circumstances having arisen and nothing having been done or omitted to be done (together an "Event") which
(i) would render any of such Warranties untrue or inaccurate in any material respect if they were repeated as at Admission or at any time on or after 28 August 1998 up to and including Admission; or
(ii) would entitle or would have entitled (with the giving of notice and/or lapse of time and/or the satisfaction of any other condition and/or compliance with any other formality) the Banks or any of them:-
(a) to require repayment before its stated maturity of any amounts from time to time outstanding under, or to refuse the making of an advance or drawdown or otherwise to make available funds under, the Existing Facility or the Bridging Agreement or the FOREX Agreement (save for any Event which relates solely to the FOREX Agreement and which (i) does not give rise to a breach of any other warranty, condition or term of this Agreement, (ii) is not a default and would not entitle the Banks or any of them to exercise their rights, remedies or powers under the Existing Facility or the Bridging Facility, and (iii) is not a Default or Default Occurrence under the New Facility; or
(b) to enforce any of the Security; or
(iii) which would be a Default or Default Occurrence (as defined in the New Facility) under the New Facility (or would be if any advance had been made thereunder and remained outstanding);
2.1.9 any Supplementary Prospectus being approved by the London Stock Exchange and published in accordance with the Listing Rules and Clause 8.63 before the condition contained in sub-clause 2.1.11 shall have been satisfied;
2.1.10 the delivery by the Company and the Executive Directors to the Subscribers of a certificate in the form set out in Schedule 6 on 3rd September 1998 not later than 5.00pm (or such later time or date as the Subscribers may agree);
2.1.11 Admission occurring on or before 4 September 1998 (or such later date as the Subscribers may agree); or
2.1.12 if any demand shall be made by any of the Banks for payment or repayment of any sums from time to time owing to the Banks or any of them pursuant to the Existing Facility or the Bridging Agreement or the FOREX Agreement save for any such demand in respect solely of the FOREX Agreement and which (i) does not give rise to a breach of any other warranty, condition or term of this Agreement, (ii) is not a default and would not entitle the Banks or any of them to exercise their rights, remedies or powers under the ExistingFacility or the Bridg in Facility, and (iii) is not a Default or Default Occurrence under the New Facility. PROVIDED THAT each of the following parties to this Agreement shall perform its respective obligations under this Agreement until such time (if any) as any of such conditions precedent (shall have become incapable of being fulfilled whereupon the “Conditions”) provisions of Clause 2.3 shall apply.
2.2 The Company, each of the Directors and the Subscribers will respectively use all reasonable endeavours to procure the fulfilment of the conditions set out in Clause 2.1 by the Longstop Date:times and dates stated therein (or such later time and/or date as the Subscribers may agree) and undertake to provide such information, supply such documents, pay such fees, give such undertakings and do all such acts and things as may be required by the London Stock Exchange to enable Admission to occur and shall notify each other party forthwith of any information of which they are or become aware at any time until this Agreement becomes unconditional in all respects which could or does indicate that any of the said conditions is not, or may not be, capable of being satisfied.
8.1.1 2.3 If any of the Buyer having received conditions set out in Clause 2.1 is not fulfilled, or waived by the written approval Subscribers, by the time and/or date specified therein (or such later time and/or date as the Subscribers may agree) or, where no time and/or date is specified, before the condition contained in Clause 2.1.11 shall have been satisfied, this Agreement shall cease and determine and no party to this Agreement will have any claim against any other party to this Agreement for costs, damages, compensation or otherwise except that:-
2.3.1 such termination shall be without prejudice to any accrued rights or obligations of FAS any party under this Agreement;
2.3.2 the Company shall pay the reasonable costs and expenses (including VAT) properly incurred of the Subscribers in direct connection with the acquisition Proposals up to a maximum aggregate sum of (pound)500,000, unless such conditions have not been fulfilled as a direct result of the default by the Buyer Subscribers under this Agreement (which for the avoidance of doubt shall not include the Sale Shares without exercise of any conditions or restrictions (or subject right the Subscribers may have under this Agreement); and
2.3.3 the provisions of Clauses 10, 11, 13 and 18 to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer 20 shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Sources: Subscription Agreement (Huntingdon Life Sciences Group PLC)
Conditions. 8.1 Notwithstanding anything 2.1 The obligations of the Underwriter under Clause 6 are conditional upon:
(1) the passing by the Independent Shareholders at the SGM of (i) ordinary resolutions to approve the Rights Issue (including, but not limited to, the exclusion of the offer of the Rights Shares to the contrary in Non-Qualifying Shareholders) and this Agreement, Completion is conditional upon ; and (ii) a special resolution to approve the Whitewash Waiver by no later than the Prospectus Posting Date;
(2) the Executive granting the Whitewash Waiver to the Underwriter and the satisfaction of any condition attached to the Whitewash Waiver granted;
(3) the Listing Committee of the Stock Exchange granting or waiver agreeing to grant (subject to allotment) and not having withdrawn or revoked listing of and permission to deal in all the Rights Shares (in accordance their nil-paid and fully-paid forms) by no later than the Prospectus Posting Date;
(4) the filing and registration of all relevant documents with Clause 8.6the Registrar of Companies in Hong Kong by no later than the Prospectus Posting Date;
(5) the posting of the Prospectus Documents to Qualifying Shareholders on the Prospectus Posting Date;
(6) this Agreement not being terminated by the Underwriter pursuant to the terms hereof on or before the Latest Time for Termination;
(7) the delivery of the duly signed Undertaking Letters to the Company; and
(8) compliance with and performance of all the undertakings and obligations of the signatory of each of the following conditions precedent (Undertaking Letters.
2.2 The Company shall use its best endeavours to procure the “Conditions”) by fulfillment of all the Longstop Date:
8.1.1 Conditions Precedent to the Buyer having received the written approval of FAS extent it is within its power to do so and in particular shall furnish such information, supply such documents, pay such fees, give such undertakings and do all such acts and things as may be necessary in connection with the acquisition terms of this Agreement.
2.3 The Underwriter shall use its best endeavours to procure that all information and documents relating to itself and parties acting in concert with it reasonably required by the Buyer Company:
(1) for the purposes of preparing any announcements required pursuant to the Listing Rules or at the request of the Sale Shares without any conditions Stock Exchange and/or the SFC to be made by the Company after the signing of this Agreement in connection with the transactions contemplated by this Agreement; or
(2) for the purposes of preparing the circular to shareholders of the Company in connection with the convening of the SGM; or
(3) as otherwise may reasonably be required by the Stock Exchange and/or the SFC; or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory is made available to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to Investor in a timely manner upon request from the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);Investor.
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each 2.4 None of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement Conditions Precedent set out in Clause 9 (Conduct 2.1 are capable of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made being waived by any third party asserting that to this Agreement.
2.5 If the Conditions Precedent are not satisfied by the Latest Time for Termination (or such person is entitled to all or any part of or interest later time and/or date as the Underwriter may agree with the Company in the Sale Shareswriting), and/or the Subsidiary Equity Interests, and/or the Purchase Price; this Agreement shall terminate (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights save in respect of any person; provisions of Clauses 8.2,11, 14 and 16 and any rights or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for obligations which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination may accrue under this Agreement prior to such termination) and Completion was effected notwithstanding the breach(es))no party will have any claim against any other party for costs, could reasonably be expected to exceed [***];damages, compensation or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions. 8.1 Notwithstanding anything 6.1 Mutual Conditions in Favour of Acquirer and Target The respective obligations of Target and Acquirer to complete the transactions contemplated herein are subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each fulfillment of the following conditions precedent (at or before the “Conditions”) by the Longstop DateFiling Date or such other time as is specified below:
8.1.1 (a) the Buyer having received Required Approvals in respect of the written approval Target Meeting shall have been obtained;
(b) the Required Approvals in respect of FAS the Acquirer Meeting shall have been obtained;
(c) the TSX shall have conditionally approved the listing on the TSX of the Acquirer Shares to be issued pursuant to the Merger and the Acquirer Shares reserved for issuance upon the exercise of Acquirer Options issued pursuant to the Merger, in connection each case on terms and conditions acceptable to each of the Parties, acting reasonably;
(d) there shall not be in force any order or decree issued in accordance with Applicable Law restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding under Applicable Law of a judicial or administrative nature or otherwise in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the acquisition by terms hereof or would otherwise be inconsistent with the Buyer Regulatory Approvals which have been obtained; and
(e) each of the Sale Shares without Key Regulatory Approvals has been made, given or obtained on terms acceptable to Acquirer and Target, each acting reasonably (and taking into account the terms of Section 4.4), and each such Key Regulatory Approval is in force and has not been modified in a manner not acceptable to each of Acquirer and Target, each acting reasonably. The foregoing conditions are for the mutual benefit of the Parties and may be waived by mutual consent of Acquirer and Target in writing at any conditions or restrictions (or subject to time. No such waiver shall be of any effect unless it is in writing signed by both Parties. If any of such conditions shall not be complied with or restrictions which are reasonably satisfactory to waived as aforesaid on or before the Buyer) andCompletion Deadline or, if any such conditions or restrictions are imposedearlier, or otherwise affect or relate to the Seller or any Seller Group Companydate required for the performance thereof, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effectthen, subject to any amendments thereto both Parties Section 6.4, either Party may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed terminate this Agreement by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, written notice to the reasonable satisfaction other Party in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under a breach of this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terminating Party.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything The obligation of any Agent, as agent of the Company, at any time ("Solicitation Time") to solicit offers to purchase the Securities, the obligation of any Agent to purchase Securities as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each condition that all representations and warranties of the Company herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Securities, at and as of such Solicitation Time and (ii) in the case of any Agent's or any other purchaser's obligation to purchase Securities, at and as of the time the Company accepts the offer to purchase such Securities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder prior to such relevant time; and (3) to the following additional conditions precedent (the “Conditions”) by the Longstop Datewhen and as specified:
8.1.1 (a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the Buyer having received case may be:
(i) if any amendment to the written approval of FAS in connection with Registration Statement filed prior to the acquisition by the Buyer Commencement Date has not been declared effective as of the Sale Shares without any conditions or restrictions (or subject to Commencement Date, such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring amendment shall have been completed in accordance declared effective not later than 5:30 p.m. (New York City time) on the Commencement Date; if applicable, the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) respect to such Securities shall have been fully performed filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Seller and/or any Group Company rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceeding for that purpose shall have been initiated or threatened by the relevant Former Group Company, as applicable, Commission which has not been resolved in the reasonable satisfaction of such Agent; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Buyersuch Agent;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior ii) subsequent to or as of the date of Completion: this Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review or possible change that indicates a downgrading or possible downgrading in the rating accorded any securities of or guaranteed by the Company by any Rating Organization;
(iii) subsequent to the date of this Agreement, there shall not have been any material adverse change in the financial condition or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, as amended or supplemented to such Solicitation Time or at the time such offer to purchase was made, the effect of which in the judgment of the applicable Agent makes it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, as so amended or supplemented; and
(iv) subsequent to the date of this Agreement, there shall not have occurred (a) any claim having been made by any third party asserting that such person is entitled to all suspension or limitation of trading in securities generally on the New York Stock Exchange, or any part setting of minimum prices for trading on such exchange, or interest any suspension of trading of any securities of the Company on any exchange or in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Priceover-the-counter market; (b) any claim having been made banking moratorium declared by any person (other than a Seller Related Entity U.S. Federal or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any personNew York authorities; or (c) any injunctionoutbreak or escalation of major hostilities in which the United States is involved, judgmentany declaration of war by Congress or any other substantial national or international calamity or emergency if, orderin the judgment of a majority in interest of the involved Agents, decree or ruling the effect of any Governmental Authority shall having been issued that
8.1.9 no material breach such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the Seller Warranties sale of and payment for the Securities.
(b) On the Commencement Date and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the Seller having occurredapplicable Terms Agreement or other agreement, provided that at the corresponding Time of Delivery, ▇▇▇▇▇, Brown & ▇▇▇▇▇, special counsel for purposes the Company, or other counsel for the Company reasonably satisfactory to such Agent or Agents, shall have furnished to the relevant Agent or Agents their written opinion, dated the Commencement Date or Time of this Clause 8.1.9 “material breach” means a breach Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that:
(or series of breachesi) of any Seller Warranties for which The Company is an existing corporation in good standing under the aggregate liability laws of the SellerState of Delaware, if with corporate power and authority to own its properties and conduct its business as described in the Buyer were Prospectus; and the Company is duly qualified to bring do business as a Claim(sforeign corporation in good standing in all other jurisdictions within the United States of America in which its ownership or leasing of property or the conduct of its business re- quires such qualification and where the failure to be so qualified or in good standing would have a material adverse effect upon its operations or financial condition;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles; the Indenture complies as to form in all material respects with the requirements of the Trust Indenture Act; the Securities have been duly authorized by the Company and, when the terms thereof have been established and when the Securities have been executed, authenticated, issued and delivered in the manner provided in the Indenture and sold through an Agent as agent or to any Agent as principal pursuant to a Terms Agreement, will constitute, valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles;
(assuming iii) To the best of the knowledge of such counsel without independent inquiry, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for these purposes that the Buyer did not have any right consummation of termination under the transactions contemplated by this Agreement and Completion was effected notwithstanding any applicable Terms Agreement in connection with the breach(esissuance or sale of the Securities by the Company, except such as are required and have been obtained and made under the Securities Act and the Trust Indenture Act and such as may be required under state securities laws (it being understood that such opinion may be limited to such consents, approvals, authorizations, orders and filings which, in such counsel's experience, are customarily applicable to transactions of the type contemplated by this Agreement, any applicable Terms Agreement and the Indenture);
(iv) The execution, delivery and performance of the Indenture, this Agreement and any applicable Terms Agreement and the issuance and sale of the Securities and compliance with the terms and provisions of the Indenture, this Agreement and the terms of the Securities described in the Prospectus will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company, any Subsidiary incorporated in the United States of America or any of their respective properties known to such counsel, or the charter or by-laws of the Company, or any such Subsidiary; and the Company has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement and any applicable Terms Agreement;
(v) The Registration Statement has become effective under the Securities Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the registration statement relating to the Securities, as of its effective date and the Prospectus, as of the date of the applicable Terms Agreement, and any amendment or supplement thereto, as of its date, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel have no reason to believe that such registration statement, as of its effective date, or any amendment thereto, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the applicable Terms Agreement or as of such Commencement Date, or any amendment or supplement thereto, as of its date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial and statistical data contained in the Registration Statement or the Prospectus;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other than the financial statements, schedules and other financial and statistical data included therein, as to which such counsel need express no opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied as to form in all material respects with the applicable requirements of the Exchange Act when so filed. Such counsel in rendering such opinion may rely as to certain matters of fact on certificates of officers of the Company and of public officials; provided, however, that such certificates shall have been delivered to the -------- ------- Representatives on or prior to the Commencement Date or Time of Delivery, as the case may be.
(c) On the Commencement Date and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel and Secretary of Case Corporation, shall have furnished to the relevant Agent or Agents his written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that:
(i) To the best of his knowledge, no consent, approval or authorization of any third party is required for the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and made and are in full force and effect and such as may be required under state securities laws;
(ii) The execution, delivery and performance of the Indenture and the applicable Terms Agreement (including the provisions of this Agreement) and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under (including, without limitation, any event or condition which, with notice or lapse of time, or both, would constitute a default under), could any material agreement or instrument known to such counsel to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the properties of the Company or any Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no material pending legal proceedings known to such counsel to which the Company or any Subsidiary is a party or of which the property of the Company or any Subsidiary is the subject, and to the best knowledge of such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration statement relating to the Securities, as of its effective date, or any amendment thereto, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Terms Agreement or as of the Commencement Date, or any amendment or supplement thereto, as of its date or as of the Commencement Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical data contained in the Registration Statement or the Prospectus. Such counsel in rendering such opinion may rely as to certain matters of fact on certificates of officers of the Company and of public officials; provided, however, that such certificates shall have been delivered to the -------- ------- Agents on or prior to the Commencement Date or Time of Delivery, as the case may be.
(d) On the Commencement Date and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Agents, or other counsel for the Agents reasonably be expected satisfactory to exceed [***];the Agents and the Company, shall have furnished to the relevant Agent or Agents such opinion or opinions, dated the Commencement Date or Time of Delivery, as the case may be, with respect to the validity of the Indenture, the Securities, the Registration Statement, the Prospectus as amended or supplemented and other related matters as such Agent or Agents may reasonably request, and in each case such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(e) On the Commencement Date and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the Company's independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and Prospectus, as then amended or supplemented, shall have furnished to the relevant Agent or Agents a letter, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information relating to the Company contained in or incorporated by reference in the Registration Statement and the Prospectus, as then amended or supplemented.
(f) On the Commencement Date and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 Completion of the transfer of the Sale Shares by the Vendor to the contrary in Buyer under this Agreement, Completion Agreement is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of on the following conditions precedent (the “Conditions”) being satisfied, namely:
(a) the Vendor having obtained all necessary governmental, regulatory and corporate authorisations as well as third party approvals and consents, for the entering into of this Agreement and the performance of the obligations undertaken by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Vendor and other relevant conditions specified in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Clause 4 and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Clause Error! Reference source not found. (Restructuringas applicable to the Vendor for Closing and Post-Closing respectively. For the avoidance of doubt, any costs arising out of or in connection with the obtaining of any authorisations, approvals or consents required by the Vendor under this Clause 3.1(a) (shall be borne solely by the “Restructuring Condition”)Vendor;
8.1.4 each (b) the representations and warranties of the actions set out Vendor in Clause 6.1 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;
(c) the Buyer having obtained all necessary governmental, regulatory and corporate authorisations as well as third party approvals and consents, for the entering into of this Agreement and the performance of the obligations undertaken by the Buyer and other relevant conditions specified in Clause 4 and Clause Error! Reference source not found. (DD Followas applicable to the Buyer for Closing and Post-up ActionsClosing respectively. For the avoidance of doubt, any costs arising out of or in connection with the obtaining of any authorisations, approvals or consents required by the Buyer under this Clause 3.1(c) shall have been fully performed be borne solely by the Seller and/or any Group Company or Buyer; and
(d) the relevant Former Group Company, as applicable, to the reasonable satisfaction representations and warranties of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied Buyer in all material respects with its covenants, obligations and undertakings under Clause 6.2 of this Agreement hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date.
3.2 The Conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (aClauses 3.1(a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; and (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties may be waived by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach Buyer (in part or series of breachesin whole) of any Seller Warranties for which in writing.
3.3 The Conditions set out in Clauses 3.1(c) and (d) may be waived by the aggregate liability of the Seller, if the Buyer were to bring a Claim(sVendor (in part or in whole) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];in writing.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Unique Logistics International, Inc.)
Conditions. 8.1 Notwithstanding anything The effectiveness of this Amendment is subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent precedent:
(a) the “Conditions”execution and delivery of this Amendment by Borrower, each other Loan Party, Agent and the Required Lenders;
(b) the representations and warranties in Section 4 hereof being true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties are true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
(c) no Default or Event of Default has occurred or is continuing (or would result after giving effect to the transactions contemplated by this Amendment);
(d) the receipt in cash by the Secured Parties of the payment of all fees, costs and expenses incurred thereby on or prior to the date of this Amendment that are required to be reimbursed pursuant to Section 6.3 of the Facility Agreement or Section 6 of this Amendment and all other fees, costs and expenses incurred in connection with this Amendment (and the transactions contemplated hereby) by the Longstop Date:
8.1.1 Secured Parties (including, in each case, all attorneys’ fees of the Buyer having received Secured Parties and any estimates of post-closing fees, costs and expenses (including all attorneys’ fees) expected to be incurred by the written approval of FAS Secured Parties in connection with this Amendment);
(e) the acquisition receipt by the Buyer Agent and the Lenders of a fully executed copy of a corresponding amendment to the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are ABL Credit Facility in form and substance reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to Agent and the Seller or any Seller Group Company, reasonably satisfactory to the Seller) Lenders (the “FAS Approval ConditionABL Amendment”);; and
8.1.2 (f) the Seller receipt by the Agent and the Buyer shall have entered into Lenders of all Transaction Documents other documents, agreements, instruments and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed other information requested by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all Agent or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Lender.
Appears in 1 contract
Conditions. 8.1 The consummation of the sale and purchase contemplated by this Agreement will be subject to the following conditions:
a. The representations and warranties by Seller set forth in Section 7 shall be true and correct in all material respects as of the date when made and as of the Closing.
b. There shall have been no material adverse change in the condition of the Properties except depletion through normal production within authorized allowables and rates of production, depreciation of equipment through ordinary wear and tear, and other transactions permitted under this Agreement or approved in writing by Buyer between the date of this Agreement and Closing.
c. All requirements made by Buyer with regard to title to the Properties shall have been fully satisfied or waived by Buyer. All consents, approvals and authorizations of assignments, and waivers of preferential rights to purchase required by Buyer shall have been submitted to and approved by Buyer.
d. Seller and Buyer understand and agree that if: (1) title to the Properties is not satisfactory to Buyer; (2) Seller's actual interests in the Properties is different than as represented by Seller and the difference causes a diminution in Seller's net revenue interest which Seller represents to own; (3) contracts, claims or litigation to which Buyer takes exception are material; or, (4) Seller fails to comply with any of the conditions set forth in this Agreement; Buyer may, at its option, either terminate this Agreement at any time on or before Closing, or reduce the Purchase Price by an amount agreeable to both parties. However, any reduction in Seller's net revenue interests below that which is represented in Exhibit "A" shall result in an automatic reduction in the Purchase Price commensurate with the reduction in such net revenue interest.
e. The parties shall have performed or complied with all agreements and covenants required by this Agreement of which performance or compliance is required prior to or at Closing.
f. All legal matters in connection with and the consummation of the transactions contemplated by this Agreement shall be approved by counsel for Buyer and there shall have been furnished by Seller such records and information as Buyer's counsel may reasonably request for that purpose.
g. Notwithstanding anything to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the at Buyer) and's option, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents the unilateral right to terminate this Agreement if Buyer determines it does not have the rights to obtain and such Transaction Documents remain in full force and effect, subject maintain the rights to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each be Operator of the actions set out in Error! Reference source not foundProperties pursuant to existing Operating Agreements at Closing. (DD Follow-up Actions) Operations shall have been fully performed by be transferred from Seller to Buyer at Closing via the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction execution of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];mutually agreeable Joint Operating Agreement.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 The sale and purchase of the Registered Shares and the Bearer Shares pursuant to the contrary this Agreement are in this Agreement, Completion is all respects conditional upon satisfaction or waiver those matters listed in Schedule 2 (Conditions to Completion), provided that, except for the condition set out in accordance with Clause 8.6) paragraph 1 of each Schedule 2, the Purchaser may in its discretion waive such conditions.
3.2 The Purchaser shall as soon as reasonably practicable following the execution of this Agreement and receipt of the following relevant information from the Sellers apply for the regulatory clearances set out in paragraph 1 of Schedule 2 (Conditions to Completion) and shall pursue obtaining such clearances with all reasonable speed. The Purchaser shall take all reasonable steps to procure obtaining such clearances as soon as possible and shall accept all and any terms and conditions precedent (imposed by any regulatory authority attaching to any such clearances.
3.3 Each of the “Conditions”) by Sellers and the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Purchaser undertakes to co-operate with each other in exchanging such information and supplying such reasonable assistance as required in connection with any filings provided for in paragraph 1 of Schedule 2 (Conditions to Completion) and further undertake to disclose in writing to the acquisition by other anything which will or may prevent the Buyer conditions set out in paragraph 1 of Schedule 2 (Conditions to Completion) from being satisfied on or prior to 30 June 2005 immediately it comes to the notice of either of them.
3.4 The Purchaser undertakes to keep the Sellers informed as to progress towards satisfaction of the Sale Shares without condition set out in paragraph 1 of Schedule 2 (Conditions to Completion) and undertakes to:
(A) notify the Sellers and provide copies of any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory material communications to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or extent that they relate to the Seller Group from any governmental or regulatory body or other person in relation to obtaining any Seller Group Companyconsent, reasonably satisfactory approval or action where such communications have not been independently or simultaneously supplied to the Seller) (the “FAS Approval Condition”)Sellers;
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (RestructuringB) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed where reasonably requested by the Seller and/or Sellers, provide the Sellers (or advisers nominated by the Sellers) with draft copies of all submissions and communications to governmental or regulatory bodies or other persons to the extent they relate to the Group in relation to obtaining any Group Company consent, approval or action at such time as will allow the relevant Former Group CompanySellers a reasonable opportunity to provide comments on such submissions and communications before they are submitted or sent and provide the Sellers (or such nominated advisers) with copies of all such submissions and communications in the form submitted or sent; and
(C) where reasonably requested by the Sellers and where permitted by the governmental or regulatory body or other person concerned, as applicableallow persons nominated by the Sellers to attend all meetings with governmental or regulatory bodies or other persons and, where appropriate, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that make oral submissions at such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];meetings.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 5.1 Conditions for the Benefit of the Purchaser.
(a) The purchase of the Securities by the Purchaser is subject to the contrary following conditions, which are for the exclusive benefit of the Purchaser and which are to be performed or complied with at or prior to the Time of Closing:
(i) the representations and warranties of the Corporation set forth in Section 3.1 will be true and correct at the Time of Closing with the same force and effect as if made at and as of such time except:
(A) insofar as such representations and warranties are given as of a particular date and relate solely to such date; or
(B) to the extent any of such representations and warranties have been waived by the Purchaser or affected by the transactions between the parties contemplated hereby;
(ii) the representations and warranties of IMSI set forth in Section 3.5 will be true and correct at the Time of Closing with the same force and effect as if made at and as of such time except:
(A) insofar as such representations and warranties are given as of a particular date and relate solely to such date; or
(B) to the extent any of such representations and warranties have been waived by the Purchaser or affected by the transactions between the parties contemplated hereby;
(iii) each of IMSI and the Corporation will have performed or complied with all of the terms, covenants and conditions of this Agreement to be performed or complied with by IMSI or the Corporation, respectively at or prior to the Time of Closing;
(iv) the Purchaser will be furnished with such certificates or other instruments (including, without limiting the generality of the foregoing, a certified copy of (i) resolutions of the board of directors of IMSI approving the issuance of the Securities to the Purchaser and (ii) resolutions of the board of directors of the Corporation approving the reserving of 2,053,334 Common Shares to be issued in exchange for the Class X Shares of IMSI and approving the execution of this Agreement and the Support Agreement) of the Corporation and/or IMSI or of officers of the Corporation and/or IMSI as the Purchaser or the Purchaser's counsel may reasonably think necessary in order to establish that the terms, covenants and conditions contained in this Agreement, Completion is conditional upon satisfaction Agreement to have been performed or waiver (in accordance complied with Clause 8.6) by the Corporation and/or IMSI at or prior to the Time of each Closing have been performed or complied with and that the representations and warranties of the following conditions precedent Corporation and/or IMSI herein given are true and correct at the Time of Closing, subject to Section 5.1(a)(i) hereof;
(v) there will have been obtained from all appropriate federal, provincial, state, municipal or other governmental or administrative bodies such approvals or consents as are required to permit the “Conditions”transactions contemplated hereby;
(vi) no action or proceeding will be pending or threatened by any person, government, governmental authority, regulatory body or agency to enjoin, restrict or prohibit the Longstop Date:purchase of the Securities as contemplated hereby.
8.1.1 (vii) no action or proceeding will be pending or threatened by any person, government, governmental authority, regulatory body or agency to enjoin, restrict or prohibit the Buyer having received exchange of the written approval Class X Shares for common shares of FAS the Corporation;
(viii) no material damage by fire or other hazard to the Assets will have occurred from the date hereof to the Time of Closing;
(ix) all necessary steps and proceedings will have been taken to permit the Securities to be issued;
(x) IMSI shall have executed and delivered special warrant certificates representing the Special Warrants;
(xi) the Corporation and the Purchaser shall have executed and delivered a Registration Rights Agreement in connection the form attached as Schedule 5.1 (a)(xi) (xii) on or before the Time of Closing, the Purchaser shall be fully satisfied, in its sole discretion, with the acquisition by results of its due diligence inquiries;
(xiii) the Buyer of Corporation, the Sale Shares without any conditions or restrictions Purchaser, Mich▇▇▇ ▇▇▇▇▇▇, ▇▇5489 Ontario Inc., and other parties will have entered into a second voting agreement in the form attached as Schedule 5.1(a)(xiii) hereto;
(or subject to such conditions or restrictions which are reasonably satisfactory xiv) the Corporation will have delivered to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate Purchaser a favorable opinion of their counsel licensed to practice in the Seller or any Seller Group Company, reasonably satisfactory to State of Nevada substantially in the Seller) (the “FAS Approval Condition”form attached hereto as Schedule 5.1(a)(xiv);
8.1.2 (xv) the Seller Corporation, IMSI and the Buyer Purchaser shall have entered into all Transaction Documents executed and such Transaction Documents remain delivered IMSI/IMSC Support Agreement in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. form attached as Schedule 5.1 (Restructuring) (the “Restructuring Condition”a)(xv);
8.1.4 each of (xvi) the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall Corporation will have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, delivered to the reasonable satisfaction Purchaser a favourable opinion of their securities counsel as a form acceptable to the BuyerPurchaser's counsel;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following xvii) nothing shall have occurred prior to the Time of Closing which would have a material adverse effect on the business, operations, properties, condition (financial or as otherwise) of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all Corporation or any part of or interest in on the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach ability of the Seller Warranties by Corporation to perform its obligations hereunder;
(xviii) the Seller having occurredCorporation shall have satisfied the account of Purchaser's Canadian legal counsel Gowling, provided that for purposes of this Clause 8.1.9 “material breach” means a breach Strathy & Hend▇▇▇▇▇ ▇▇▇ U.S. legal counsel Stradley, Ronon, Stev▇▇▇ & Young, LIP; and
(or series of breachesxix) of any Seller Warranties for which the aggregate liability of Corporation shall have executed and delivered the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Escrow Agreement.
Appears in 1 contract
Sources: Subscription Agreement (Southbridge Investment Partnership No 1)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including but not limited to legal, financial and commercial aspects) in respect of the Company and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) if so required, passing of necessary resolutions by the Company’s board of directors and shareholders approving this Agreement and the transactions contemplated herein;
(c) all necessary consents, permits and approvals (whether governmental, regulatory or otherwise) as may be required under U.S. securities laws or other relevant laws, regulations and rules in the U.S. in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop DatePurchaser;
(d) the Purchaser having obtained a legal opinion issued by a U.S. legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
8.1.1 (i) the Buyer having received legality and validity of this Agreement, allotment and issue of Consideration Shares and the written approval transactions contemplated herein;
(ii) the completion of FAS in connection with all necessary procedures and obtaining of all necessary approvals regarding the acquisition by the Buyer of the Sale Shares without any conditions or restrictions Interests; and,
(or subject to such conditions or restrictions which are iii) all other matters reasonably satisfactory to requested by the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Purchaser;
8.1.2 (e) the Seller and due execution of a Hotels Management Contracts Assignment agreement by the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingPurchaser;
8.1.3 (f) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all times between the date of this Agreement and the Completion.
3.2 In connection to Clause 3.1 (a), the Vendor shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approval, correspondence and accounts of the Company and the Transferor and all such information relating to both the Company and the Transferor as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but not limited to, in all legal, financial and commercial aspects) against them and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company and the Transferor shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors.
3.3 The Purchaser may at any time by notice in writing to the Vendors waive any of the Conditions set out in Clause 9 3.1. If (Conduct a) any of Business the conditions set out in Clause 3.1 has not been satisfied (or as the case may be, waived by the Purchaser) or before 5:00 p.m. on the Completion Date or such later date as the Purchaser may agree; or (b) the Purchaser is not satisfied with the results of the due diligence conducted according to Clause 3.2 and informs the Vendors in writing at any time, this Agreement shall cease and determine and the parties to this Agreement shall not have any obligations and liabilities.
3.4 The Vendor, the Transferor and the Company undertake to disclose in writing to the Purchaser anything which will or may prevent any of the conditions from being satisfied at or prior to Completion; Information Rights, as applicable, immediately upon the Vendor or the Company becoming aware of such a situation.
3.5 From the date of this Agreement until Completion, except otherwise with the prior consent of the Purchaser:
(a) The Vendor and the Transferor warrant and undertake that they will cause the Company to: - conduct its business in the ordinary course and consistent with best practices, - use its best efforts to maintain in full force and effect of the Company, - promptly and timely pay all taxes, if so required, - keep records in which true and correct entries will be made of all material transactions by and with each of the Vendor, Transferor and the Company, - duly observe all material requirements of governmental authorities unless contested in good faith by appropriate proceedings with the consent of the Purchaser, - promptly pay and discharge when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income and profits upon the Company unless contested in good faith by appropriate proceedings with the consent of the Purchaser, - at all times comply with the provisions of all contracts to which the Company or the Transferor is a party,
(b) The Vendor warrants and undertakes to cause the Company not to: modify any clauses of its Memorandum and Articles of Association, - cause or permit its liquidation or dissolution, - make a general assignment for the benefit of any third parties, - declare or pay any dividend or make any distribution to its shareholders(s);, - issue, redeem, sell or dispose of, or create any obligation to issue, redeem, sell or dispose of, any shares of its capital stock, - effect any stock split, reclassification or combination, - modify its agreements and other obligations with respect to, but not limited to, its hotel management contracts and any other notes and security agreements.
8.1.7 3.6 Until completion, the Vendor, the Transferor and the Company shall procure that the Purchaser, its agents and representatives are given reasonable access to such documents relating to the Company, as the Purchaser may request. The Vendor and the Transferor shall assist the auditors appointed by the Purchaser to complete the report of the Company in accordance with the US GAAP.
3.7 The Vendor and the Transferor warrant, represent and undertake that there shall have been no Material Adverse Change having occurred;
8.1.8 none in the assets or the business, prospects, financial conditions and results of operations of the following shall have occurred Company.
3.8 The Purchaser may rescind this Agreement by notice in writing to the Vendor, the Transferor and the Company if prior to Completion it appears that any of the Warranties is not or as of was not true and accurate in any respects or if any act or event occurs which, had it occurred on or before the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Sharesthis Agreement, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than would have constituted a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights breach of any person; of the Warranties or (c) if there is any injunction, judgment, order, decree or ruling material non fulfillment of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were is not remedied prior to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];completion.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 The availability of the Facility and the Credit Parties’ obligations to arrange, underwrite and fund the Facility in full is subject only to:
(a) receipt by us of a copy of this letter countersigned by you; and
(b) satisfaction of the Certain Funds Conditions and the Initial Conditions Precedent set out in the Term Sheet. There are no other conditions, implied or otherwise, to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each commitments of the following conditions precedent Credit Parties, their obligations hereunder and their funding of the Facility.
3.2 Each Credit Party is pleased to confirm that:
(a) its credit committee and all other internal bodies or committees have given full and final approval for arranging, underwriting and/or funding (as the case may be) the Facility on the “Conditions”) certain funds” basis as described and on the terms set out in the Commitment Documents, and performing all of its duties, roles and obligations as contemplated by the Longstop Date:
8.1.1 Commitment Documents (including but not limited to all client identification procedures and the Buyer having received collection of all information required by applicable money laundering rules in respect of the written approval of FAS Sponsors and their Affiliates, the Parent and the Company required in connection with the acquisition by Acquisition), the Buyer of Facility and the Sale Shares without any conditions or restrictions transactions contemplated therein (or subject to such conditions or restrictions which are reasonably satisfactory to together, the BuyerTransaction) andin compliance with applicable laws, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)regulations and internal requirements;
8.1.2 (b) it has received and reviewed the Seller draft or final Acquisition Documents, Original Financial Statements, Base Case Model, Reports and Group Structure Chart (in each case, as defined in the Term Sheet, and together, the Commercial CPs) and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions related conditions precedent set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, Term Sheet will be satisfied subject to the reasonable satisfaction delivery of final versions of the Buyer;Commercial CPs that are not materially different in respects which are materially adverse to the interests of the Credit Parties (taken as a whole) under the Commitment Documents compared to the most recent form of such Commercial CPs delivered to the Credit Parties on or before the date of this letter or (in the case of all of the Commercial CPs) are approved by all of the Credit Parties (acting reasonably with such approval not to be unreasonably withheld or delayed) and it will promptly confirm this accordingly to the Agent; and
8.1.5 [***];
8.1.6 (c) there are no outstanding internal approvals, due diligence items or other internal impediments to it arranging, underwriting and/or funding (as the Seller having complied in all material respects with its covenants, obligations case may be) the Facility on the “certain funds” basis as described and undertakings under this Agreement on the terms set out in Clause 9 (Conduct the Commitment Documents and performing all of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or its roles, duties and obligations as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Commitment Documents.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 4.1 Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of is conditional on the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which following Conditions being satisfied on terms that are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to waived by the Buyer in accordance with clause 4.5:
4.1.1 each of the Fundamental Warranties remaining true, accurate and not misleading in all material respects as at Completion;
4.1.2 there having been no material breach by the Seller of its obligations under this Agreement between the date of this Agreement and Completion;
4.1.3 any and all consents, approvals and waivers in connection with the execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated under this Agreement on the part of the Seller having been obtained and remaining in full force and effect as at Completion, and no such consent, approval or clearance having been revoked or modified prior to Completion;
4.1.4 there being no litigation, regulatory action or other legal, regulatory, or other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the consummation of any of the transactions by and on the part of the Seller as contemplated under this Agreement;
4.1.5 no Group CompanyCompany Material Adverse Effect having occurred between the date of this Agreement and Completion; and
4.1.6 the Seller being, and remaining as, a holder of all of the Sale Shares at all times between the date of this Agreement and Completion.
4.2 Completion by the Seller is conditional on the following Conditions being satisfied on terms that are reasonably satisfactory to the Seller) (, or waived in accordance with clause 4.5:
4.2.1 each of the “FAS Approval Condition”)Buyer Warranties that are qualified with respect to materiality shall remaining true, accurate and not misleading in all respects, and each of the Buyer Warranties that are not so qualified shall be true, accurate and not misleading in all material respects, in each case as of the date hereof and as at Completion, except for those Buyer Warranties that are as of a specific date, which shall be true, accurate and not misleading as of such date;
8.1.2 4.2.2 any and all consents, approvals and waivers in connection with the Seller execution, delivery and performance of this Agreement and the consummation of the transactions contemplated under this Agreement (including the acquisition of the Sale Shares by the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain the issuance of the Consideration Shares) having been obtained and remaining in full force and effect as at Completion, and no such consent, approval or clearance having been revoked or modified prior to Completion;
4.2.3 there being no litigation, regulatory action or other legal, regulatory or other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the consummation of any of the transactions contemplated under this Agreement;
4.2.4 no Buyer Material Adverse Effect having occurred between the date of this Agreement and Completion;
4.2.5 the Sanomics Settlement Deed having been entered into on terms satisfactory to the Seller; and
4.2.6 the terms and conditions of this Agreement being (and remaining, as at Completion), in the Seller’s sole reasonable opinion, no less favourable to the Seller than the terms and conditions of the ACT Majority SPA that are applicable to any Sanomics Seller pursuant to the terms and conditions of the ACT Majority SPA, including (but not limited to) such provisions in relation to the calculation of the Purchase Price and the Exchange Ratio.
4.3 The Seller shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clauses 4.1.1, 4.1.2, 4.1.3, 4.1.4 and 4.1.6 as soon as possible after the date of this Agreement and in any event not later than the Completion Date. The Buyer shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 4.2 as soon as possible after the date of this Agreement and in any event not later than the Completion Date.
4.4 If, at any time, any of the parties becomes aware of a fact or circumstance that might prevent a Condition being satisfied by the Longstop Date, it shall immediately inform the Buyer (in the case of the Seller becoming aware of such fact or circumstance) or the Seller (in the case of the Buyer becoming aware of such fact or circumstance).
4.5 At any time on or before the Completion Date, the Buyer may waive any Condition set out in clauses 4.1 by Notice to the Seller on any terms it decides, and the Seller may waive any Condition set out in clause 4.2 by Notice to the Buyer on any terms it decides.
4.6 If the Seller fail to satisfy, or procure the satisfaction of, any of those Conditions that it has agreed to use its reasonable endeavours to procure the satisfaction of, as set out in clause 4.3, or the Buyer fails to satisfy, or procure the satisfaction of, any Condition set out in clause 4.2 (each a “CP Defaulting Party”), in each case by 5.00 p.m. on the Longstop Date, and the Buyer (if the Seller is a CP Defaulting Party) or the Seller (if the Buyer is a CP Defaulting Party) does not waive such Condition, the CP Defaulting Party shall be entitled to remedy such failure and achieve the satisfaction of the relevant Condition within twenty (20) Business Days after the Longstop Date (the “Cure Period”). If, following expiry of the Cure Period, the relevant Condition remains unsatisfied and the Buyer (for any Condition set out in clause 4.1) or the Seller (for any Condition set out in clause 4.2) has not waived such Condition before the expiry of the Cure Period, this Agreement shall automatically terminate with immediate effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 and the Restructuring Company shall have been completed in accordance with Error! Reference source not found. indemnify the Buyer (Restructuringif the Seller is the CP Defaulting Party) or the Buyer shall indemnify the Company (if the Buyer is the CP Defaulting Party) (the Buyer or the Company (as applicable) who is being indemnified shall be a “Restructuring ConditionCP Non-defaulting Party”);
8.1.4 each ) for a breach of the actions set out in Error! Reference source not found. (DD Followobligations of the Buyer or the Seller respectively under clause 4.3, and keep the CP Non-up Actions) shall have been fully performed defaulting Party indemnified, on demand against all external advisor fees and any other fees directly incurred by the Seller and/or CP Non-defaulting Party relating to the transactions contemplated by the Transaction Documents (including the negotiation, preparation, execution and performance by it of this Agreement and of each other Transaction Document), up to the Reimbursement Cap.
4.7 If this Agreement is terminated pursuant to clause 4.6, each party’s further rights and obligations cease immediately on termination, but termination does not affect a party’s accrued rights and obligations as at the date of termination or its rights and obligations arising as a result of termination, provided that the remedies set forth in clause 4.6 shall be the CP Non-defaulting Party’s sole and exclusive remedy for any Group Company claim made by CP Non-defaulting Party against the CP Defaulting Party for the termination of this Agreement pursuant to clause 4.6 (unless the termination of this Agreement is as a result of any fraud or wilful misconduct of the relevant Former Group CompanyCP Defaulting Party).
4.8 Between the date and time of signing of this Agreement and the date and time of Completion, if there is any amendment or supplement to the ACT Majority SPA, the Buyer shall forthwith provide a duly executed electronic copy of such amendment, supplement or restatement, as applicable, such as to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 allow the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement to assess whether the Condition set out in Clause 9 (Conduct under clause 4.2.6 has been fulfilled. For the avoidance of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Sharesdoubt, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of if the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes in its sole reasonable discretion, considers that the Buyer did Condition under clause 4.2.6 has not have any yet been fulfilled, it may either exercise its right to waive such Condition in accordance with clause 4.5 above, or if it opts not to exercise such right, the provisions of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];clause 4.6 shall apply.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Prenetics Global LTD)
Conditions. 8.1 Notwithstanding anything (a) The consummation of the contribution by each Rollover Shareholder of the Rollover Shares pursuant to Section 2 hereof shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6the case of clauses (i), (ii) of each and (iii)) waiver by such Rollover Shareholder of the following conditions precedent conditions: (i) the “Conditions”) delivery to such Rollover Shareholder by the Longstop Date:
8.1.1 the Buyer having received the written approval Parent of FAS in connection with the acquisition by the Buyer a copy of the Sale Shares without any conditions or restrictions Shareholders Agreement duly executed by Parent; (or subject to such conditions or restrictions which are reasonably satisfactory to ii) that the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller representations and the Buyer warranties of Parent contained in this Agreement shall have entered into all Transaction Documents be true and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied correct in all material respects as of the Closing Date; (iii) that Parent shall have performed or complied with its covenants, obligations and undertakings in all material respects all covenants required to be performed or complied with by it under this Agreement set out Agreement; (iv) the issuance of the Parent Issued Securities to which such Rollover Shareholder is entitled under Section 2 concurrently with such contribution; and (v) the consummation of the Merger immediately following such contribution.
(b) The consummation of the issuance of the Parent Issued Securities by Parent to each Rollover Shareholder pursuant to Section 2 hereof shall be subject to the satisfaction or (in Clause 9 the case of clauses (Conduct of Business before Completion; Information Rightsi);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none , (ii) and (iii)) waiver by Parent of the following conditions: (i) the execution and delivery by each Rollover Shareholder of a copy of the Shareholders Agreement duly executed by such Rollover Shareholder, (ii) that the representations and warranties of such Rollover Shareholder contained in this Agreement shall have occurred prior to or be true and correct in all material respects as of the date of Completion: Closing Date; (aiii) any claim having been made by any third party asserting that such person is entitled Rollover Shareholder shall have performed or complied with in all material respects all covenants required to all be performed or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Pricecomplied with by it under this Agreement; (biv) any claim having been made the contribution by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach such Rollover Shareholder of the Seller Warranties Rollover Shares to be contributed by it under Section 2 and (v) the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability consummation of the Seller, if Merger immediately following such issuance of the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Parent Issued Securities.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 4.1 The commitment of (i) each Arranger to arrange and manage the Interim Facilities and (ii) each Underwriter to underwrite, provide and act as original lender in respect of the relevant proportion of the Interim Facilities, on the terms and subject to the conditions set out in the Interim Facilities Agreement (including our undertaking in paragraph 2.1 above), is not subject to any conditions, express or implied other than the absence of any illegality in respect of the Arrangers or Underwriters arranging or underwriting the Interim Facilities after the date of this letter and provided that where applicable, such illegality alone will not excuse any other Arranger or Underwriter from participating in the relevant Interim Utilisation and will not in any way affect the obligations of any other Arranger or Underwriter.
4.2 For the avoidance of doubt and notwithstanding any provision to the contrary in this the Commitment Documents, we hereby acknowledge and agree that, upon signing the Interim Facilities Agreement, Completion our obligation to provide the Interim Facilities is conditional upon satisfaction subject only to the terms and conditions set out in the Interim Facilities Agreement and nothing in the Commitment Documents (including, without limitation, any breach or waiver termination of this letter or any failure to agree any documents pursuant to paragraph 2 (Financing and Commitment)) above shall prevent us from funding, participating or making available the Interim Facilities in accordance with Clause 8.6) of each the provisions of the following conditions precedent (the “Conditions”) by the Longstop DateInterim Facilities Agreement.
4.3 Each Commitment Party confirms that:
8.1.1 (a) it has completed and is satisfied with the Buyer having received results of:
(i) all client identification procedures in respect of the written approval of FAS Topco (as defined in the Agreed Form Interim Facilities Agreement) and the Company (as defined in the Agreed Form Interim Facilities Agreement) that it is required to carry out in connection with making the Interim Facilities available in connection with the acquisition by Transaction and assuming its other liabilities and assuming and performing its obligations under the Buyer Commitment Documents and otherwise in respect of the Sale Shares without any conditions or restrictions Transaction, in each case in compliance with all applicable laws, regulations and internal requirements (or subject to such conditions or restrictions including all applicable anti-corruption, anti-money laundering, anti-terrorist financing and other "know your customer" laws, regulations, rules and/or requirements); and
(ii) all due diligence which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposedhas been carried out by it, or otherwise affect or relate to on its behalf, in connection with the Seller or any Seller Transaction (and assuming its liabilities and assuming and performing its obligations under the Commitment Documents), the Group Company, reasonably satisfactory to and the Seller) (the “FAS Approval Condition”)Target Group and other agreed purposes and that it has no further due diligence requirements;
8.1.2 (b) it has obtained all necessary approvals (including credit committee approvals and all other relevant internal approvals) to allow it, and it is not illegal in any applicable jurisdiction for it, to (and there are no further internal impediments to) arrange, manage, underwrite and/or make available the Seller Interim Facilities in the amounts specified in this letter and does not require any further internal credit sanctions or other approvals in order to do so; and
(c) it has received, reviewed and is satisfied with the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;form of:
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuringi) (the “Restructuring Condition”);
8.1.4 each of the actions legal opinions set out in Error! Reference source not found. paragraph 3 of Part I (DD Follow-up ActionsConditions Precedent to Signing) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, of Schedule 3 (Conditions Precedent) to the reasonable satisfaction of the BuyerAgreed Form Interim Facilities Agreement;
8.1.5 [***];(ii) the Offer Announcement; and
8.1.6 (iii) the Seller having complied Tax Structure Memorandum; in all material respects with its covenantseach case, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of such form provided to the following shall have occurred Commitment Parties on or prior to or as of the date of Completion: this letter; and
(ad) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest it will accept in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights satisfaction of any person; or condition precedent to the availability of the Interim Facilities requiring delivery of any document described in paragraph (c) any injunctionabove, judgmenta final version of that document which is not different in respects which are materially adverse to interests of the Underwriter in its capacity as original lender of the Interim Facilities compared to the version of that document accepted pursuant paragraph (c) above.
(e) For the avoidance of doubt, order, decree or ruling no reliance will be given on the Tax Structure Memorandum as a condition to utilisation of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Interim Facility.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 The sale and purchase of the Sale Shares is conditional upon:
(a) completion, on or before the Completion Date, of a due diligence exercise on the business, affairs, operations, assets, financial condition, prospects and records of the Group by the Purchaser, and the results of such due diligence exercise being satisfactory to the contrary Purchaser in this Agreementits sole and absolute discretion;
(b) the Vendors supplying, Completion is conditional upon satisfaction or waiver procuring the Group Companies or its employees, officers, agents or representatives to supply to the Purchaser, all of the information (in accordance with Clause 8.6such details as may be satisfactory to the Purchaser) of each of the following conditions precedent (the “Conditions”) requested by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Purchaser from time to time in connection with the acquisition due diligence exercise referred to in Clause 3.1(a) before the Completion Date;
(c) there being no material adverse change (as reasonably determined by the Buyer Purchaser in its sole and absolute discretion) in the prospects, operations or financial conditions of the Sale Shares without Group occurring on or before the Completion Date;
(d) all representations, undertakings and Warranties of the Vendors under this Agreement being complied with, and remaining true, accurate and correct as at the Completion Date;
(e) the Vendors having performed all of the covenants and agreements required to be performed or caused to be performed by it under this Agreement on or before the Completion Date;
(f) there being no default by any Group Company in any of its obligations by which the Company may become bound or liable to be called upon to repay prematurely any loan capital or borrowed moneys;
(g) all Key Personnel having executed employment contracts with the respective Group Company for a minimum term of 3 years and on other terms and conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the BuyerPurchaser;
(h) and, if any such conditions or restrictions are imposed, or otherwise affect or relate The following transactions (collectively the “Restructuring”) having been completed to the Seller or any Seller Group satisfaction of the Purchaser:
(i) all the business and assets of HZY having been transferred to the Designated PRC Company, reasonably satisfactory and the Designated PRC Company having a registered capital of RMB 20,000,000;
(ii) all the equity interest in the Designated PRC Company being held by the ordinary shareholders referred to in Clause 3.1(h)(iii) below, and such ordinary shareholders having entered into the Equity Pledge Agreement with the WFOE pledging all their rights, title and interest in such equity interest to the SellerWFOE;
(iii) two nominees designated by the Purchaser having been appointed as ordinary shareholders of the Designated PRC Company, to control and manage the Designated PRC Company at the direction of the Purchaser, and each of such nominees having entered into the Trust Agreements with the Company to this effect;
(iv) the WFOE having entered into a technology consulting service agreement with the Designated PRC Company for the provision of management services by the WFOE to the Designated PRC Company;
(v) Excel Hero having been registered as the sole investor and holder of 100% of the equity interest in the WFOE; and
(vi) Sun Media Investment Holdings Ltd. having transferred 100% of the issued and paid up share capital of Excel Hero to the Company; and
(vii) the Vendors are together holding 100% of the issued and paid up capital of the Company in the following proportion: 60% shall be held by YANG Qi, 15% shall be held by MAO Q▇▇▇ ▇▇ and 25% shall be held by WU Bing Wei.
(i) the net tangible asset value of the Designated PRC Company (the “FAS Approval ConditionNTA Value”) shall be RMB 40,000,000 or more. The NTA Value shall be determined by a certified public accounting firm to be appointed by the Purchaser (at the Company’s cost), and such determination shall be conclusive and binding on the Vendors;
8.1.2 (j) the Seller approval of the Purchaser’s shareholders and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each board of directors being obtained at a general meeting of the actions set out in Error! Reference source not found. Purchaser for (DD Follow-up Actionsi) shall have been fully performed by the Seller and/or any Group Company or Purchaser’s entry into this Agreement; and (ii) the relevant Former Group Company, as applicable, to transaction contemplated under this Agreement; and (iii) the reasonable satisfaction issuance and allotment of the Buyer;Consideration Shares; and
8.1.5 [***];
8.1.6 (k) all other necessary registrations and consents, if any, required under any and all applicable laws for the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct sale of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made being granted and not withdrawn or revoked by any person relevant third parties (including without limitation, the consent and registration of the transfer of the sale shares with the Industrial and Commercial Regulation Bureau, other than government bodies, stock exchange and other relevant authorities having jurisdiction over the transactions contemplated under this Agreement) and if such consents are obtained subject to any conditions and where such conditions affect any of the parties, such conditions being acceptable to the party concerned and, if such conditions are required to be fulfilled before Completion, such conditions being fulfilled before Completion.
(l) all other necessary consents, if any, required under any and all the contracts to which the Purchaser is a Seller Related Entity party, for the issurance of the Consideration Shares, being granted and not withdrawn or a Buyer Related Personrevoked by any relevant third parties and if such consents are obtained subject to any conditions and where such conditions affect any of the parties, such conditions being acceptable to the party concerned and, if such conditions are required to be fulfilled before Completion, such conditions being fulfilled before Completion; and
3.2 The Vendors shall do all such necessary acts and things to fulfill, and to procure the fulfillment of, the conditions in Clauses 3.1(a), 3.1(b), 3.1(c), 3.1(d), 3.1(e), 3.1(f), 3.1(g), 3.1(h), 3.1(i) asserting that and 3.1(k), including the Transaction Documents or submission of all documents required, and the Transactions contemplated hereby are illegal or invalid or violate the rights compliance of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority terms imposed by the relevant regulatory authorities.
3.3 The Purchaser shall having been issued that
8.1.9 no material breach use commercially reasonable endeavours to procure the fulfilment of the Seller Warranties conditions in Clause 3.1(j) and 3.1(l) and the Vendors shall, and shall procure that each Group Company shall, do all things necessary to assist the Purchaser to fulfil the aforesaid conditions.
3.4 If any of the conditions in Clause 3.1 are not fulfilled or not waived by the Seller having occurredPurchaser by 1 January 2006, provided that the Party responsible for purposes of this Clause 8.1.9 “material breach” means a breach fulfilling such condition shall use its best endeavours to fulfill such condition by 1 February 2006 (or series of breaches) of such other date as the Vendors and the Purchaser may mutually agree (the “Agreed Date”), but in any Seller Warranties for which case, no later than the aggregate liability of Long Stop Date). If the Sellerrelevant condition is still not fulfilled by the Agreed Date, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)MOU shall ipso facto cease and determine and none of the Parties shall have any claim against the other for costs, damages, compensation or otherwise, save for any claim arising from an antecedent breach of this Agreement. The Parties’ obligation of confidentiality under Clause 10 shall survive the termination of this Agreement.
3.5 Without prejudice to Clause 3.4 above, the Parties agree that the Purchaser shall be entitled, immediately after the signing of this Agreement, to nominate two persons (who shall be PRC nationals), could reasonably to be expected ordinary shareholders of the Designated PRC Company, and such nominees shall be empowered and authorized to exceed [***];control and manage the PRC Company at the direction of the Purchaser. The Vendors shall, and shall procure that the Group Companies and the Board of Directors of each Group Company do all thing necessary to give effect to this clause.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including but not limited to legal, financial and commercial aspects) in respect of the Company and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) if so required, passing of necessary resolutions by shareholders of the Purchaser at a general meeting approving (i) this Agreement and the transactions contemplated herein and (ii) the allotment and issue of the Consideration Shares to the Vendors credited as fully paid;
(c) all necessary consents, permits and approvals (whether governmental, regulatory or otherwise) as may be required under U.S. securities laws or other relevant laws, regulations and rules in the U.S. in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop Date:Purchaser;
8.1.1 (d) all necessary consents, permits and approvals (whether governmental, regulatory or otherwise) as may be required in respect of the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer sale and purchase of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Interests and/or change of control of the Company having been obtained from the relevant PRC governmental authorities including not but limited to the Buyernew business registration licence and tax licences for the Company;
(e) and, if any such conditions or restrictions the Purchaser having obtained a legal opinion issued by a U.S. legal counsel (which form and contents are imposed, or otherwise affect or relate satisfactory and acceptable to the Seller Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement, allotment and issue of Consideration Shares and the transactions contemplated herein;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and,
(iii) all other matters reasonably requested by the Purchaser;
(f) the Purchaser having obtained a legal opinion issued by a PRC legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
(i) the legality and validity of this Agreement;
(ii) the completion of all necessary procedures and obtaining of all necessary approvals regarding the acquisition of the Sale Interests; and,
(iii) all other matters reasonably requested by the Purchaser;
(g) the Purchaser having obtained a consent letter duly signed by all shareholders and person who has any direct or indirect interest in the registered capital of the Company waiving their respective rights of pre-emption or any Seller Group Company, reasonably satisfactory to other rights they may have in respect of the Seller) (the “FAS Approval Condition”)Sale Interests;
8.1.2 (h) the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all times between the date of this Agreement and the Completion.
3.2 The Vendors shall jointly and severally procure the fulfillment of the condition precedents mentioned in Clause 3.1(d) above and shall keep the Purchaser fully informed of all their actions and efforts in connection with their obtaining the necessary consents, permits and approvals from the relevant regulatory authorities, including without limitation, providing the Purchaser immediately with all of their correspondence with these authorities.
3.3 In connection to Clause 3.1(a), the Vendors shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approval, correspondence and accounts of the Company and all members of the Company and all such information relating to the Company as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but not limited to, in all legal, financial and commercial aspects) against the Company and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors under Clause 9.
3.4 The Purchaser may at any time by notice in writing to the Vendors waive any of the Conditions set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Completion Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by due diligence and informs the Seller having occurredVendors in writing at any time, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Agreement shall cease and determine and the aggregate liability of the Seller, if the Buyer were parties to bring a Claim(s) (assuming for these purposes that the Buyer did this Agreement shall not have any right of termination under this Agreement obligations and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];liabilities.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to 4.1 The sale and purchase of the contrary in this Agreement, Completion Sale Shares is conditional upon the satisfaction or waiver (if made in accordance with Clause 8.6the provisions hereof) of the following, or their satisfaction subject only to Completion:
(a) the passing by shareholders of the Seller who are permitted to vote at a general meeting of the Seller of a resolution to approve the sale of the Sale Shares in accordance with the requirements of the Listing Rules;
(b) all Authorisations which are required for the entering into or the performance of obligations under this Agreement by the Parties having been obtained and all filings with any Authorities and other relevant third parties which are required for the entering into and the implementation of this Agreement having been made and such Authorisations (if any) remaining in full force and effect and there being no statement, notification or intimation of an intention to revoke or not to renew the same having been recorded. Without limiting the generality of the foregoing, such Authorisations include:
(i) the consent in writing from the Registrar of Travel Agents to the Transaction having been obtained in accordance with the Travel Agents Ordinance (Chapter 218 of the Laws of Hong Kong);
(ii) the consent in writing from the International Air Transport Association to the Transaction having been obtained;
(iii) the consent in writing from the holders of the 2% convertible exchangeable notes issued by the Seller on 8 June 2006 to the Transaction having been obtained in accordance with the terms and conditions of such convertible exchangeable notes; and
(iv) the consent from the lessor under each of the following conditions precedent relevant Leases, if required by the terms of the relevant leases, to the Transaction having been obtained in accordance with the terms of the relevant Lease;
(c) no order or judgment (whether temporary, preliminary or permanent) of any Authority having been issued or made prior to Completion, and no legal or regulatory requirements remain to be satisfied, which has the effect of making unlawful or otherwise prohibiting or restricting the transfer of the Sale Shares to the Purchaser, or any transaction contemplated by this Agreement and the other Transaction Documents;
(d) the Purchaser being satisfied that no Material Adverse Change has arisen or occurred since 31 December 2009;
(e) there having been no breach in any material respect by the Seller of any of its obligations under this Agreement or any of the other Transaction Documents; and
(f) there having been no breach of the Warranties (and no fact, event or circumstance having occurred which would make the Warranties untrue or inaccurate in any respect when repeated at Completion), and there having been delivered to the Purchaser a certificate in the form attached as Schedule 13 (“ConditionsCertificate”) signed by a director of the Longstop Seller and dated the Completion Date, in which the Seller certifies the matters set out in paragraphs (b), (c), (d), (e) and (f) above.
4.2 The Seller undertakes to the Purchaser:
8.1.1 (a) in the Buyer having received case of the written Conditions set out in Clause 4.1(b), to use its reasonable endeavours to ensure that such Conditions are fulfilled as soon as reasonably practicable after the date of this Agreement;
(b) in the case of the Condition set out in Clause 4.1(a), to comply with the requirements of the Listing Rules regarding announcements and circulars, and to convene a special general meeting for the approval of FAS shareholders of the Seller in respect of the transactions contemplated in this Agreement and the other Transaction Documents as soon as practicable after the date of this Agreement;
(c) request the board of directors of the Seller, but subject to the fiduciary duties of the directors, to recommend and continue to recommend to the shareholders of the Seller all of the transactions contemplated in this Agreement and the other Transaction Documents; and
(d) subject to the Purchaser promptly complying with Clause 4.3, as soon as practicable after the signing of this Agreement to prepare and submit necessary applications for the purposes of the consents referred to in Clause 4.1(b).
4.3 Each of the Seller and the Purchaser shall (and the Seller shall procure that the Group shall), upon request from the other Party, promptly co-operate with and provide all necessary information and other assistance reasonably required by such other Party in connection with the acquisition by the Buyer satisfaction of the Sale Shares without Conditions, including for the purposes of the provision of such information to any conditions Authority as shall be necessary in connection with the satisfaction of the Conditions.
4.4 The Purchaser may waive any of the Conditions in Clause 4.1 (other than the Conditions in Clauses 4.1(a), (b)(i), (b)(iii) or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory c)) at any time by written notice to the BuyerSeller.
4.5 Each of the Purchaser and the Seller shall give notice to the other that a relevant Condition has been satisfied as soon as practicable and in any event within two Business Days of becoming aware of the fact.
4.6 If one or more of the Conditions in Clauses 4.1(a) to (f):
(a) remains unsatisfied as at the Long Stop Date and has not been waived on or before the Long Stop Date in accordance with this Agreement; or
(b) becomes impossible to satisfy before the Long Stop Date and, if any it is a Condition which can be waived by a Party, has not been waived within five Business Days of such conditions or restrictions are imposedCondition becoming impossible to satisfy, or otherwise affect or relate to then this Agreement, other than the Seller or any Seller Group CompanySurviving Provisions, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller shall automatically terminate with immediate effect and the Buyer shall have entered into all Transaction Documents each Party’s rights and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Personthose in respect of the Surviving Provisions) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate shall cease immediately on termination. Such termination shall not affect the rights and obligations of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were Party existing prior to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];termination.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Ctrip Com International LTD)
Conditions. 8.1 Notwithstanding anything The Parties are not required to complete the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of Arrangement unless each of the following conditions precedent (is satisfied on or prior to the “Conditions”) Effective Time, which conditions may only be waived, in whole or in part, by the Longstop Datemutual consent of each of the Parties:
8.1.1 (a) the Buyer having received Interim Order shall have been granted on terms consistent with this Agreement and the written approval of FAS Interim Order shall not have been set aside or modified in connection a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved and adopted by the Company Shareholders at the Company Meeting in accordance with the acquisition by Interim Order;
(c) the Buyer Final Order shall have been granted on terms consistent with this Agreement and the Final Order shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) the issuance of the Sale Consideration Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory will be exempt from the registration requirements of the U.S. Securities Act pursuant to the BuyerSection 3(a)(10) andExemption;
(e) the necessary approvals of the CSE and TSXV, if any such conditions or restrictions are imposedany, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)will have been obtained;
8.1.2 (f) the Seller Consideration Shares to be issued upon completion of the Arrangement and the Buyer shall have entered into all Transaction Documents Shares to be issued upon the exercise from time to time of the Company Options, Company Warrants, Company RSUs and such Transaction Documents remain in full force upon the conversion from time to time of the Company Debentures shall, if required by the TSXV and effectsubject only to the satisfaction of customary conditions required by the TSXV, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (approved for listing on the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group CompanyTSXV, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date Effective Date and the TSXV, shall have, if required, accepted notice for filing of Completion: all transactions of the Parties contemplated herein or necessary to complete the Arrangement, subject only to compliance with the customary requirements of the TSXV;
(ag) any claim having been made by any all Regulatory Approvals and all third party asserting that such person is entitled Person and other consents, waivers, permits, exemptions, orders, approvals, agreements and amendments and modifications to all agreements, indentures or any part arrangements, in each case, the failure of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents which to obtain or the Transactions contemplated hereby are illegal non-expiry of which would, or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***]have, a Company Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, or materially impede the completion of the Arrangement, shall have been obtained or received;
(h) no Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents, prohibits or makes the consummation of the Arrangement illegal or otherwise prohibits or enjoins the Company or the Buyer from consummating the Arrangement or any of the other transactions contemplated in this Agreement;
(i) the Company shall have entered into a supplemental indenture governing the Company Debentures with the debenture trustee; and
(j) the TSXV shall have conditionally approved the listing of certain post- Arrangement securities of the Buyer, consisting of the Consideration Shares, the Buyer Shares and those Company Warrants and Company Debentures that are currently listed on the TSXV and which shall become binding obligations of the Buyer following completion of the Arrangement, on the TSXV, subject to completion of the Arrangement and completion of the customary listing requirements of the TSXV.
Appears in 1 contract
Sources: Arrangement Agreement
Conditions. 8.1 Notwithstanding anything 3.1 Completion of the sale and purchase of the Shares and the granting of the Call Options is conditional on:
(i) the authorisation of the management board of the Purchaser by its shareholders meeting for the ordinary shares included in the Securities Issue;
(ii) the authorisation of the management board of the Purchaser by its shareholders meeting for the purchase of the Shares as required under art. 2: 98 of the Dutch Civil Code;
(iii) the authorisation of the management board of the Purchaser by its shareholders meeting for the issue of the Option Shares, should the Call Option be exercised;
(iv) the obtaining of adequate financing for the purchase of the Shares in a form and an amount satisfactory to the contrary in Purchaser and such financing continuing to be available up to Completion;
(v) the delivery (▇▇▇▇▇▇▇▇) of all Shares to the Purchaser through the execution at Completion by each Seller of its respective Deed of Transfer pursuant to this Agreement;
(vi) the delivery at Completion to the Notary of the Cash Purchase Price, Completion is conditional upon satisfaction or waiver (together with any late payment interest accrued thereon in accordance with Clause 8.6Schedule 2 “Interest”, if any;
(vii) of each of the following conditions precedent approval from the agent security trustee under the EUR 730,000,000 senior facilities agreement dated 23 December 2003, as amended;
(the “Conditions”viii) by the Longstop Date:
8.1.1 time that all the Buyer Conditions under (i) through (iv) (inclusive), (vi) and (vii) are satisfied or waived, no event having received occurred, which has, or would be likely to have after Completion, a material adverse effect on the written approval of FAS in connection with the acquisition by the Buyer financial condition or business of the Sale Shares without any conditions or restrictions Purchaser (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”as presently carried on);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuringix) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to events taking place by the time that all the Conditions under (i) through (vii) (inclusive) are satisfied or as of the date of Completion: waived:
(aA) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Sellers’ Warranties coming to the notice of the Purchaser which breach is not remedied or waived as of the Completion Date; and
(B) a Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “being in material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination obligation on its part under this Agreement and which, if that breach is capable of remedy, is not remedied to the Purchaser’s satisfaction within 5 Business Days of the Purchaser notifying that Seller that such breach must be remedied; and
(C) any court or competent authority having prohibited or suspended the consummation by the Purchaser of the transactions contemplated by this Agreement.
(x) none of the following events taking place by the time that all the above Conditions under (i) through (vii) (inclusive) are satisfied or waived:
(A) a material breach of the Purchaser’s Warranties coming to the notice of the Seller which breach is not remedied or waived as of the Completion was effected notwithstanding Date; and
(B) the breach(es)Purchaser being in material breach of any obligation on its part under this Agreement which, if that breach is capable of remedy, is not remedied to the Sellers’ satisfaction within 5 Business Days of the Sellers notifying that Purchaser that such breach must be remedied; and
(C) any court or competent authority having prohibited or suspended the consummation by the Sellers of the transactions contemplated by this Agreement.
3.2 Conditions 3.1(i), could reasonably 3.1(ii), 3.1(iii), 3.1(iv), 3.1(v), 3.1(vii), 3.1(viii) and 3.1(ix) are for the benefit of the Purchaser and (except for Conditions 3.1(ii) and 3.1(iii)) may be expected waived (either in whole or in part) by the Purchaser at any time by notice to exceed [***];the Sellers.
3.3 Conditions 3.1(vi) and 3.1(x) are for the benefit of the Sellers and may be waived (either in whole or in part) by the Apollo Holders and the Bain Holders acting jointly at any time by notice to the Purchaser.
3.4 Each of the parties shall use reasonable endeavours to procure that the Conditions are satisfied on or before 8 April 2005. If the Conditions are not fulfilled or waived on or before that date:
(i) except for this subclause, the Clauses headed “Confidentiality”, “Notices”, “Further Assurances”, “Assignments”, “Payments”, “General”, “Whole Agreement”, “Governing Law”, “Arbitration” and “Date”, together with the provisions of the Clause headed “Interpretation”, all the other Clauses of this Agreement shall lapse (vervallen) and cease to have effect; but
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 2.1 Completion is conditional upon satisfaction the fulfilment or waiver (in accordance with Clause 8.6if applicable) of each of the following conditions precedent (“Conditions”):
(a) (i) no indication being received prior to Completion from the Stock Exchange to the effect that the listing of the Subscription Shares on the Main Board of Stock Exchange shall or may be withdrawn or objected to, and (ii) the Stock Exchange have not indicated that the trading of the Shares on the Stock Exchange will be suspended, cancelled or withdrawn before the Completion or that it will object to, or it will impose conditions on, the continued listing of the Shares on the Stock Exchange based on reasons arising from the transactions contemplated in this Agreement;
(b) the listing committee of the Stock Exchange granting listing of and permission to deal in the Subscription Shares and such listing and permission not subsequently revoked prior to Completion (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval ConditionListing Approval”);
8.1.2 (c) the Seller passing of the relevant resolutions by way of poll at the Shareholders’ Meeting who are entitled to vote and who are not required to abstain from voting under the Listing Rules and other applicable laws and regulations for approving this Agreement and the Buyer shall have entered into all Transaction Documents transactions contemplated hereunder (including the allotment and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 issue of the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”Subscription Shares under a specific mandate);
8.1.4 each (d) with respect to Subscriber’s obligations to consummate the Completion only, the Warranties made or given by the Company set forth in Clause 3.1 of SCHEDULE 1 to this Agreement are true, accurate, and not misleading in all respects as of the actions set out in Error! Reference source not found. date hereof and as of the Completion Date;
(DD Follow-up Actionse) shall have been fully performed with respect to Subscriber’s obligations to consummate the Completion only, any other Warranties made or given by the Seller and/or any Group Company or the relevant Former Group Companyunder this Agreement (except for those set forth in Clause 3.1 of SCHEDULE 1 to this Agreement) are true, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied accurate and not misleading in all material respects as of the date hereof and as of the Completion Date;
(f) with respect to Subscriber’s obligations to consummate the Completion only, there shall not been any material adverse change (or effect) in the financial, business or trading position of the Group immediately before Completion;
(g) the Offering Completion having taken place; and
(h) the subscription of the Subscription Shares will not cause the Subscriber Group to breach the Creeper Limit.
2.2 None of the Parties shall have the right to waive any of the Conditions under Clauses 2.1(a), 2.1(b), 2.1(c), 2.1(g) and 2.1(h). The Subscriber may in its covenantsabsolute discretion at any time before Completion waive the Conditions under Clauses 2.1(d), obligations 2.1(e) and undertakings under this Agreement 2.1(f) in part of in full by notice in writing to the Company.
2.3 The Parties shall use their reasonable endeavours to procure the fulfilment of the Conditions set out in Clause 9 2. Each Party agrees and undertakes to notify the other Party in writing as soon as practicable after it becomes aware that a Condition has been fulfilled or is incapable of fulfilment.
2.4 In the event that the Conditions are not fulfilled or waived (Conduct if applicable) on or before the Long Stop Date, this Agreement shall terminate and the obligations of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 the Parties shall immediately cease and be null and void and none of the following Parties shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right against or liability towards the other Party arising out of termination under or in connection with this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement.
Appears in 1 contract
Sources: Subscription Agreement
Conditions. 8.1 Notwithstanding anything The obligation of the Underwriters hereunder shall be conditional upon the Underwriters receiving at the Closing Time:
(a) a favourable legal opinion of the Corporation’s Canadian counsel (addressed to the contrary Underwriters, the Subscribers and the Underwriters’ counsel), in form and substance satisfactory to the Underwriters, acting reasonably, relating to the offering, issuance and sale of the Offered Securities and as to all other legal matters, including compliance with Applicable Securities Laws of the Offering Jurisdictions, in any way connected with the offering, issuance, sale and delivery of the Offered Securities as the Underwriters may reasonably request;
(b) a favourable legal opinion of the Corporation’s Canadian counsel (addressed to the Underwriters, the Subscribers and the Underwriters’ counsel), in form and substance satisfactory to the Underwriters, acting reasonably, relating to the title of the Corporation in the Black Fox Property, the Grey Fox Property and the Pike River Property;
(c) a certificate of the Corporation dated the Closing Date, addressed to the Underwriters and the Subscribers and signed on the Corporation’s behalf by two senior officers of the Corporation satisfactory to the Underwriters, acting reasonably, certifying that:
(i) the Corporation has complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time, other than those which have been waived in writing by the Underwriters;
(ii) no event of a nature referred to in Section 15(a), (b) or (d) has occurred since the date of this Agreement or to the knowledge of such officers is pending, contemplated or threatened (excluding in the case of Sections 15(b) and (d) any requirement of the Underwriters to make a determination as to whether or not any event or change has, in the Underwriters’ opinion, had or could have the effect specified therein);
(iii) the Corporation has made and/or obtained, on or prior to the Closing Time, all necessary filings, approvals, consents and acceptances under Applicable Securities Laws, and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the execution and delivery of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the Subscription Agreements, the offering and sale of the Offered Securities in the Offering Jurisdictions and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following conditions precedent the Closing Date);
(iv) there have been no material changes to the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS due diligence responses provided in connection with the acquisition due diligence session held on July 28, 2010; and
(v) such other matters as may be reasonably requested by the Buyer of Underwriters or the Sale Shares without any conditions or restrictions Underwriters’ counsel; and the Underwriters shall have no knowledge to the contrary; and
(or subject to such conditions or restrictions which are reasonably d) evidence satisfactory to the Buyer) Underwriters that the Corporation has obtained all necessary approvals of the Exchanges for the issuance of the Offered Securities and the Compensation Shares and the listing of the Offered Securities and the Compensation Shares subject only to the filing of any documents and payment of applicable fees which may be required by the Exchanges. The foregoing conditions are for the sole benefit of the Underwriters and may be waived in whole or in part by the Underwriters at any time and, if any such conditions or restrictions are imposedwithout limitation, or otherwise affect or relate to the Seller or any Seller Group CompanyLead Underwriter, reasonably satisfactory to on behalf of the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Underwriters and the Buyer on behalf of potential subscribers, shall have entered into the right to withdraw all Transaction Documents Subscription Agreements delivered and not previously withdrawn or rescinded by such Transaction Documents remain in full force and effect, subject to persons. If any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source foregoing conditions are not found. (DD Follow-up Actions) shall have been fully performed by met, the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with Underwriters may terminate its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior without prejudice to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];remedies it may have.
Appears in 1 contract
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Completion is conditional Buyer's obligation to purchase the Property shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateprecedent:
8.1.1 the Buyer having received the written approval (i) Seller's performance or tender of FAS in connection with the acquisition by the Buyer performance of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory its obligations pursuant to the Buyer) and, if any such terms and conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller of this Agreement and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied truth in all material respects with of each representation and warranty made in this Agreement by Seller at the time the representation and warranty was made, except to the extent that (A) the truth or correctness of any such representation or warranty is affected as a result of the transactions contemplated hereby or the disclosure thereof or any action by Buyer, or (B) Seller shall agree to indemnify Buyer, to Buyer's reasonable satisfaction against any resulting loss, liability or expense;
(ii) the willingness of Title Company or some other reputable title insurer to issue, upon the sole condition of the payment of its covenantsregularly scheduled premium, the Title Policy described in Section 3.4 below, insuring Buyer in the amount of the Purchase Price that title to the Real Property is vested of record in Buyer on the Closing Date, subject only to the Permitted Exceptions and to the printed conditions and exceptions of such policy other than such printed conditions and exceptions which Title Company is permitted by applicable law to remove or modify, including: (A) unrecorded mechanic's lien claims, (B) rights of parties in possession (other than tenants under leases as tenants only), (C) unrecorded easements, and (D) if Buyer obtains an ALTA survey satisfactory to Title Company, any state of facts which a current survey would disclose (other than survey matters shown on such survey and accepted by Buyer);
(iii) there having been no material adverse change in the Property from the date of this Agreement through the Closing Date, except for changes (A) contemplated or permitted by this Agreement or otherwise occurring as a result of the transactions contemplated hereby or thereby, or (B) the disclosure thereof or any action by Buyer;
(iv) Buyer's approval prior to the expiration of the Due Diligence Period of the condition and status of the Property and related matters pursuant to Section 3.3 below;
(v) on or before the date which is fourteen (14) business days after the date of this Agreement, (i) the delivery to Buyer of all of the items listed in clauses (i)-(iii) and (vi)-(xi) of Section 3.3(b) below, and (ii) the availability in Seller's offices located on the Real Property of all of the items listed in clauses (iv) and (v) of Section 3.3(b) below;
(vi) on or before the Closing Date, the delivery to Buyer of the certificate described in Section 6.1(a)(viii);
(vii) on or before the expiration of the Due Diligence Period, the receipt by Buyer of an A.L.T.A. survey satisfactory to Buyer (the "Survey");
(viii) on or before the Closing Date, the funding by Sanwa Bank California ("Sanwa") of the Sanwa Loan (as defined in Section 4.3 below), or the obtaining by Buyer of alternative financing satisfactory to Buyer; provided that Buyer shall not be excused from its obligations and undertakings under this Agreement set out if the failure to obtain the funding described in Clause 9 (Conduct this Section 3.1(a)(viii) is due to any failure of Business before Completion; Information Rights)Buyer to perform its obligations under Section 4.4(c) below or any other provision of this Agreement;
8.1.7 no Material Adverse Change having occurred;(ix) Buyer's receipt on or before the Closing Date of all consents, authorizations, permits, licenses, orders and approvals of third parties necessary for the operation of the Business; provided that Buyer shall not be excused from its obligations under this Agreement if the failure to obtain any of the foregoing is due to any failure of Buyer to perform its obligations under Section 4.4(d) below or any other provision of this Agreement; and
8.1.8 none (x) on or before the date which is fourteen (14) days after the Effective Date, the approval by Buyer's board of directors of this Agreement and the transactions contemplated hereby (including without limitation the transactions contemplated by the Processing Agreements (as defined in Section 6.1(a) below)).
(b) Notwithstanding anything in this Agreement to the contrary, Seller's obligation to sell the Property shall be subject to and contingent upon the satisfaction or waiver of the following shall have occurred prior conditions precedent:
(i) Buyer's performance or tender of performance of its obligations pursuant to the terms and conditions of this Agreement and the truth in all material respects of each representation and warranty made in this Agreement by Buyer at the time the representation and warranty was made and as of the Closing Date, except to the extent that the truth or correctness of any such representation or warranty is affected as a result of the transactions contemplated hereby or the disclosure thereof or any action by Seller;
(ii) the willingness of Title Company to issue on the Closing Date (A) the Owner's Title Policy to Buyer in the form described in Section 3.1(a)(ii), and (B) an A.L.T.A. Lender's Policy of Title Insurance with extended coverage (including such endorsements as Seller may reasonably request), insuring Seller in the face amount of the Note that the lien of the Deed of Trust constitutes a valid lien on and security interest in the Real Property subject only to (x) those exceptions to title referenced in the Preliminary Report as of the date hereof, (y) the lien of Completion: a deed of trust naming Sanwa as beneficiary, in an amount not to exceed seventy-five percent (a75%) of the value of the Real Property, as such value is established pursuant to an appraisal prepared by or at the request of Sanwa, and (z) any claim having been made other exceptions approved by any third party asserting that such person Seller in its sole discretion ("Seller's Title Policy"); and
(iii) on or before the date which is entitled to all or any part of or interest in fourteen (14) days after the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes date of this Clause 8.1.9 “material breach” means a breach (or series Agreement, the approval by Seller's board of breaches) directors of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(estransactions contemplated hereby (including without limitation the transactions contemplated by the Processing Agreements (as defined in Section 6.1(a) below)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Golden State Vintners Inc)
Conditions. 8.1 Notwithstanding anything 3.1 Completion of this Agreement is conditional on:
(A) the Listing Committee of Stock Exchange granting listing of and permission to deal in all of the Subscription Shares;
(B) the passing by the independent shareholders of the Company of a resolution to approve the allotment and issue of the Subscription Shares to the contrary in Subscriber on the terms and conditions and the other arrangements contemplated by this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each Agreement and the grant of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Special Mandate in connection order to comply with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions Listing Rules; and
(or subject C) in relation to such conditions or restrictions which are reasonably satisfactory to the Buyer) andDatang, if any such conditions or restrictions are imposedall necessary shareholder, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller PRC governmental and the Buyer shall have entered into all Transaction Documents regulatory approvals and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicableconsents being obtained, to the reasonable satisfaction of the BuyerCompany, including (but not limited to) the following:
(i) approval from the National Development and Reform Commission in relation to the subscription of Shares in the Company;
8.1.5 [***](ii) approval from the Ministry of Finance in relation to the increase in shareholding in the Company;
8.1.6 (iii) approval from the Seller having complied State Administration of Foreign Exchange in all material respects relation to Datang’s direct investment in the Company’s Shares as overseas securities.
3.2 The Company undertakes to use reasonable endeavours to procure the fulfilment of the conditions referred to in Clause 3.1(A) and (B) as soon as is reasonably practicable and will inform the Subscriber promptly following the fulfilment of such conditions.
3.3 The Subscriber undertakes to use reasonable endeavours to procure the fulfilment of the conditions referred to in Clause 3.1(C) as soon as is reasonably practicable and will inform the Company promptly following the fulfilment of such condition;
3.4 In the event that the Conditions are not fulfilled within three (3) months after the date of the Placing Agreement (or such later date as may be agreed between the parties and subject to compliance with its covenantsthe Listing Rules, obligations and undertakings under then this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 and all rights and obligations hereunder will cease and terminate and none of the following parties shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all against the other for costs, damages, compensation or any part of or interest otherwise (save in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights respect of any person; or (c) any injunctionantecedent breach hereunder and save for the provisions of Clause 7, judgment9, order10, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement 11 and Completion was effected notwithstanding the breach(es12)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Sources: Subscription Agreement (Datang Telecom Technology & Industry Holdings LTD)
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to complete the Repurchase and acquire the Shares at the Closing Date pursuant hereto are subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) by the Company on or prior to the Closing Date of each of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 (i) the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer representations and warranties of the Sale Stockholder set forth in Section 3 hereof shall be true and correct in all material respects on the Closing Date as though made on and as of such date;
(ii) the Stockholder shall have delivered the Shares to the Company;
(iii) the Stockholder shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing including, without any conditions or restrictions limitation, those set forth in Section 4;
(or subject iv) the Public Offering shall have been closed and all of the 7,000,000 shares of the Common Stock offered thereby shall have been sold therein; and
(v) the Company shall have received an opinion of counsel to such conditions or restrictions which are the Stockholder, in form and substance reasonably satisfactory to the Buyer) andCompany and dated as of the Closing Date, if any such conditions or restrictions are imposed, or otherwise affect or relate as to the Seller matters set forth in Sections 3.1 and 3.2.
(b) The obligations of the Stockholder to complete the Repurchase and sell the Shares at the Closing Date pursuant hereto are subject to the satisfaction or any Seller Group waiver by the Stockholder on or prior to the Closing Date, of each of the following conditions:
(i) the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct in all material respects on the Closing Date as though made on and as of such date;
(ii) the Company shall have paid or tendered to the Stockholder the purchase price for the Shares;
(iii) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing including, without limitation, those set forth in Section 4;
(iv) the Public Offering shall have been closed and all of the 7,000,000 shares of the Common Stock offered thereby shall have been sold therein; provided, that nothing contained in this Section 5(b) shall be deemed to limit the Stockholder's right to terminate this Agreement pursuant to Section 7(b); and
(v) the Stockholder shall have received an opinion of counsel to the Company, in form and substance reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Stockholder and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or dated as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled Closing Date, as to all or any part of or interest the matters set forth in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement Sections 2.1 and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];2.2.
Appears in 1 contract
Sources: Stock Repurchase Agreement (Itt Educational Services Inc)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser notifying the Vendors, individually and collectively, in writing that it is satisfied in reliance on the Warranties and upon having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Company referred to in Clause 3.3 below and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) approval, if necessary, by the eligible shareholders of MGI to approve the transaction in this Agreement and the Consideration Shares contemplated to be issued in this Agreement;
(c) the Vendors, individually and collectively, having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Malaysia or elsewhere under the relevant applicable laws and regulations;
(d) the Vendors delivering 51% of the Consideration Shares to be sold to the Purchaser at Completion;
(e) the Purchaser having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Malaysia or elsewhere under the relevant applicable laws and regulations;
(f) the Vendors, individually and collectively, and or the Company having complied with its pre-Completion is conditional upon satisfaction obligations specified in Clause 8 and otherwise having performed all of the covenants and agreements required to be performed under the Agreement; and
(g) the Warranties remaining true and accurate and not misleading in any material respect at as if repeated on the Completion Date and at all times between the date of this Agreement and the Completion Date.
3.2 In relation to Clause 3.1(a), the Company shall give and shall procure that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Company and all such information relating to the Company as may be reasonably requested by or waiver on behalf of the Purchaser to undertake and conduct a full due diligence (including but without limitation, in accordance with all legal, financial and commercial aspects) against the Company and be permitted to take copies of any books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendor under Clause 8.6) of 7.
3.3 The Purchaser may at any time by notice in writing to the each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer Vendors waive any of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: 3.1. If (a) any claim having of the conditions set out in Clause 3.1 has not been made satisfied (or as the case may be, waived by any third party asserting that the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such person is entitled to all later date as the Purchaser may agree; or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Purchaser is not satisfied with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach results of the Seller Warranties by the Seller having occurred, provided that for purposes of this due diligence conducted according to Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability 3.2 and informs each of the SellerVendors in writing at any time, if this obligations and liabilities hereunder save for any antecedent breaches of the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terms hereof.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 Closing Conditions for the Benefit of the Purchaser
3.1.1 The obligations of the Purchaser to complete the transactions contemplated in this Agreement shall be subject to the contrary in this Agreementsatisfaction of, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) compliance with, at or before the relevant Time of Closing, each of the following conditions precedent (each of which is hereby acknowledged to be inserted for the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer exclusive benefit of the Sale Shares without Purchaser and may be waived by it in writing in whole or in part):
(a) each of the representations and warranties of UEC or CMC made in or pursuant to this Agreement or in any Closing Document delivered pursuant hereto shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as and when made and at and as of the Time of Closing as though such representations and warranties were made at and as of the Time of Closing (except, in any case, that representations and warranties that expressly speak of a specific time need only be true and correct as of such specified date or time);
(b) all obligations, agreements and covenants of UEC to be completed prior to the Time of Closing shall have been performed or completed by it in all material respects, as applicable;
(c) UEC shall have delivered to the Purchaser a certificate from a senior officer, dated as of the Closing Date, certifying that the conditions or restrictions of Section 3.1.1(a) and Section 3.1.1(b) hereof have been satisfied;
(or subject d) UEC shall have delivered to such conditions or restrictions which are the Purchaser an officer's certificate of each of UEC and CMC, dated as of the Closing Date, in form and substance reasonably satisfactory to the BuyerPurchaser, certifying: (a) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to its constating documents; (b) the Seller or any Seller Group Company, reasonably satisfactory to resolutions of their board of directors authorizing the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller execution and delivery of this Agreement and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group CompanyRoyalty Agreements, as applicable, and the completion of the transactions contemplated hereby and thereby; and (c) incumbency and signatures of the signatories executing this Agreement or any of the Closing Documents, as applicable;
(e) all consents or approvals from, or notifications to, any Person required to create, and grant the Royalties to the reasonable satisfaction Purchaser (including those set forth in the "G" of this Agreement) will have been obtained by UEC and CMC and copies of which will have been provided by UEC to the Purchaser on or before the Time of Closing, in form satisfactory to the Purchaser acting reasonably;
(f) UEC shall have delivered to the Purchaser the written acknowledgement of any third parties with any Lien or other interest in the Properties as required by, and in form satisfactory to, the Purchaser acting reasonably;
(g) the Purchaser shall have received evidence satisfactory to it, acting reasonably, that all necessary or desirable registrations have been filed with appropriate Governmental Bodies to evidence the Royalties against title to the respective Properties;
(h) no Order shall have been issued or made and no legal or regulatory requirement shall remain to be satisfied, in either case which has the effect of making void, unlawful or otherwise prohibiting the creation and sale of the BuyerRoyalties as contemplated herein;
8.1.5 [***](i) all Governmental Approvals with respect to approval by any Governmental Body of the creation, grant and sale of the Royalties to the Purchaser, shall have been obtained;
8.1.6 (j) no action or proceeding will be pending or threatened by any Person to enjoin, restrict or prohibit the Seller having complied in all material respects with its covenantspurchase, obligations creation, grant and undertakings under this Agreement set out in Clause 9 (Conduct sale of Business before Completion; Information Rights)the Royalties contemplated hereby;
8.1.7 (k) no Material Adverse Change having occurred;
8.1.8 none change, effect, event, development, occurrence or state of facts or combination thereof that is, or would be, materially adverse to the following Royalties, the Properties or the Projects, shall have occurred prior to or as of since the date of Completion: this Agreement;
(l) each of the parties to the Royalty Agreements, as applicable, shall have executed and delivered the applicable Royalty Agreements to each counterparty;
(m) UEC shall have delivered to the Purchaser all of the information requested by the Purchaser, acting reasonably, to conduct technical, legal and financial due diligence with respect to the Projects, the Properties and the Royalties, and shall have provided access to the Purchaser to visit and inspect the Properties for purposes of such due diligence;
(n) no material adverse change shall have occurred with respect to any of the Properties or Projects;
(o) the Purchaser shall have obtained from its lenders all requisite consents to, and approvals of, the transactions contemplated in this Agreement; and
(p) UEC shall deliver, or cause to be delivered, to the Purchaser such other documents as the Purchaser may reasonably require pursuant to the transactions contemplated hereunder.
3.1.2 If any condition in Section 3.1.1 hereof shall not have been satisfied at or prior to September 30, 2018, the Purchaser may, without limiting any other right that it may have, at its sole option either:
(a) any claim having been made rescind this Agreement by any third party asserting that notice to UEC and, in such person is entitled to event, the Purchaser shall be released from all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Priceobligations; or
(b) waive compliance with any claim having been made by such term, covenant or condition in whole or in part on such terms as may be agreed upon without prejudice to any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the of its rights of any person; or (c) any injunction, judgment, order, decree or ruling rescission in the event of non-performance of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurredother term, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (covenant or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];condition in whole or in part.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything (a) The obligation of each Investor to purchase and acquire the Offered Shares hereunder shall be subject to the contrary conditions that:
(1) All representations and warranties of the Company herein shall be true and correct in all material respects as of and on each of the date of this AgreementAgreement and the date of the Closing;
(2) The Company shall have performed all of its obligations hereunder; including but not limited to delivery of the shares of Common Stock included in the Offered Shares through DWAC;
(3) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing, Completion is conditional upon satisfaction no stop order suspending the effectiveness of the Registration Statement or waiver (any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with Clause 8.6the federal securities laws;
(4) of each The Note Purchase Agreement and all principal transaction documents related thereto shall have been executed by the applicable parties and the initial closing of the following conditions precedent (the “Conditions”) transactions contemplated by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring Note Purchase Agreement shall have been completed concurrently with the Closing;
(5) The Company shall have approved the Tax Benefits Preservation Agreement Exemption Request attached as Exhibit A hereto in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”)procedures set forth in the Tax Benefits Preservation Agreement;
8.1.4 each (6) An opinion of counsel of ▇▇▇▇▇▇▇ Procter LLP in the actions set out in Error! Reference source not found. (DD Follow-up Actions) form attached as Exhibit B hereto, shall have been fully performed delivered to the Investors concurrently with the Closing; and
(7) All fees and expenses incurred on or prior to the date of Closing and required to be paid or reimbursed by the Seller and/or any Group Company or pursuant to Section 4(b)(27) hereof shall be paid concurrently with the relevant Former Group Company, as applicable, Closing.
(b) The obligation of the Company to sell the Offered Shares hereunder shall be subject to the reasonable satisfaction conditions that:
(1) All representations and warranties and other statements of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied Investors herein shall be true and correct in all material respects with its covenants, obligations as of and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as on each of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es))date of the Closing; and
(2) The Investors shall have performed all of their obligations hereunder, could reasonably be expected including but not limited to exceed [***];payment of the Aggregate Purchase Price as provided herein.
Appears in 1 contract
Sources: Securities Purchase Agreement (Unwired Planet, Inc.)
Conditions. 8.1 Notwithstanding anything to A. The rights and obligations of the contrary in Parties under this AgreementAgreement are expressly conditioned upon the satisfaction, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of writing by each Party, of the following conditions precedent (to the “Conditions”) by extent applicable to the Longstop First Phase on or before the Conditions Satisfaction Date:
8.1.1 (1) obtaining any necessary approvals from ERCOT and the Buyer having received the written approval of FAS in connection Transmission Service Provider to connect and Net Meter Customer’s Load associated with the acquisition First Phase and the Facility’s Net Energy as contemplated by the Buyer GSEC B▇▇▇▇▇▇ PPA and as further set forth in Section IX;
(2) execution of the Sale Shares without any GSEC B▇▇▇▇▇▇ PPA concurrently with the execution of this Agreement and the satisfaction of all conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to precedent set forth in Article 3 of the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)GSEC B▇▇▇▇▇▇ PPA;
8.1.2 (3) Customer installing UFLS Equipment sufficient for the Seller Customer’s Load to count toward Cooperative’s and the Buyer shall have entered into all Transaction Documents GSEC’s UFLS Requirements in compliance with ERCOT and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writingNERC requirements;
8.1.3 the Restructuring shall have been completed (4) Customer or its Affiliate providing access and permissions needed to allow Cooperative or its designee to achieve Firm Load Shed of Customer’s Load as provided in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”)this Agreement;
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions5) shall have been fully performed by the Seller and/or any Group Company Cooperative or the relevant Former Group Companyits designee, as applicable, being assured, as a condition precedent and as an ongoing condition throughout the Term, that they can: (i) exclude Customer’s Load from their respective Firm Load Shed obligations, (ii) meet any Firm Load Shed obligation that has arisen due to the reasonable satisfaction demand of the BuyerCustomer’s Load by curtailing the Customer’s Load, (iii) curtail the Customer’s Load as reasonably necessary to ensure that the Facility is the sole source of Energy for the Customer’s Load during periods that would cause an incremental Firm Load Shed allocation to GSEC or Cooperative, or (iv) implement other changes to ERCOT’s methodology for allocating Firm Load Shed that prevents any allocation caused by the Customer’s Load from being borne by other GSEC or Cooperative customers;
8.1.5 [***](6) completion of any additional requirements imposed by ERCOT in connection with Cooperative interconnecting or serving Customer’s Load associated with the First Phase, including without limitation any load, reliability, or interconnection study imposed on either Party, or on B▇▇▇▇▇▇ or GSEC, to comply with NERC Reliability Standards FAC-001 and FAC-002, which shall be completed at Customer’s expense;
8.1.6 (7) The MDC Meter being installed and under the Seller having complied Cooperative’s ownership and operation pursuant to the terms of the Operating Procedures and Section IX(B);
(8) Customer granting access rights sufficient to allow the Cooperative and GSEC, as necessary, access to the MDC Meter for purposes of installing, reading, testing, maintaining, repairing, or replacing such MDC Meter pursuant to the terms of an access easement in the form of Exhibit C;
(9) Customer shall have posted the credit support (including without limitation the Import Energy Account, Net Energy Security and the Performance Security as each such term is defined in the Performance Security Agreement) required to be posted by Customer under the Performance Security Agreement; and
(10) Execution of the DCB Consultant Agreement by the DCB Consultant and Customer prior to the initiation of Service.
B. The Parties agree that the assurance required by the Firm Load Shed condition in Section IV(A)(5) may be satisfied by Cooperative requiring that the MDC Farm be served exclusively by Energy generated by the Facility during all material respects with its covenantsperiods used by ERCOT to set Firm Load Shed obligations; provided, obligations however, unless GSEC and undertakings Cooperative are assured that one of the other options in Section IV(A)(5) can be satisfied, any failure by Customer to meet the foregoing requirement shall reinstate the condition and Cooperative shall have the right to terminate this Agreement without penalty or liability to any Party except as provided in Sections XX and XXX if the condition is not met.
C. If the Service Date has not occurred on or prior to the Conditions Satisfaction Date, Cooperative or Customer may terminate this Agreement without penalty and without any Party incurring any liability under this Agreement set out whatsoever. Alternatively, in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have event that the Service Date has not occurred on or prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled Conditions Satisfaction Date, the Parties may mutually agree to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of amend this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement.
Appears in 1 contract
Sources: Agreement for Electric Service (Soluna Holdings, Inc)
Conditions. 8.1 Notwithstanding anything 3.1 The Purchaser shall and shall procure that its agents shall forthwith upon the signing of this Agreement conduct such review of the assets, liabilities, operations and affairs of the Group as it may reasonably consider appropriate and the Vendor shall provide and procure the Group and its agents to provide such assistance as the contrary Purchaser or its agents may reasonably require in this Agreement, connection with such review.
3.2 Completion is shall be conditional upon satisfaction or waiver and subject to:
(in accordance a) the Purchaser being reasonably satisfied with Clause 8.6) of each the results of the following conditions precedent due diligence review to be conducted under Clause 3.1;
(b) all necessary consents and approvals required to be obtained on the “Conditions”part of the Vendor, the Company and the Purchaser in respect of this Agreement and the transactions contemplated thereby having been obtained;
(c) by all necessary waiver, consent, approval, license, authorization, permission, order and exemption (if required) from the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS relevant governmental or regulatory authorities or other third parties which are necessary in connection with the acquisition Agreement and the transactions contemplated thereby having been obtained;
(d) the obtaining of a valuation report with the valuation of 100% of issued share capital in the Company being not less than US$6,000,000 prepared by an independent valuer appointed by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably Purchaser in form and substance satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) Purchaser (the “FAS Approval ConditionValuation Report”);
8.1.2 (e) the Seller Vendor’ Warranties remaining true and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied accurate in all material respects respects; and
(f) the Purchaser’s Warranties remaining true and accurate in all material respects.
3.3 The Vendor shall use their best endeavours to assist the Purchaser in connection with its covenants, obligations the due diligence review to be conducted under Clause 3.1. Each of the Vendor and undertakings under this Agreement the Purchaser shall use their reasonable endeavours to fulfill the conditions set out in Clause 9 (Conduct 3.2 and shall procure that all information and documents required pursuant to the NASDAQ Listing Rules, and other applicable rules, codes and regulations whether in connection with the preparation of Business before Completion; Information Rights);all circulars, reports, documents, independent advice or otherwise are duly given promptly to the other of them, the Stock Exchange and other relevant regulatory authorities.
8.1.7 no Material Adverse Change having occurred;
8.1.8 none 3.4 None of the following conditions set out in Clause 3.2 could be waived. If the conditions set out in Clause 3.2 have not been satisfied on or before 5:00 p.m. on the Long Stop Date, this Agreement shall cease and determine and the Vendor shall forthwith return to the Purchaser all the deposits and other moneys paid by the Purchaser to the Vendor under this Agreement, in each case, without interest, and thereafter neither party shall have occurred prior to or as any obligations and liabilities towards each other hereunder save for any antecedent breaches of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];terms hereof.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Raytech Holding LTD)
Conditions. 8.1 Notwithstanding anything The respective obligations of the parties hereto to complete the contrary in transactions contemplated by this AgreementAgreement and to file the Articles of Amalgamation shall be subject to satisfaction, Completion is conditional upon satisfaction on or waiver before the Effective Date, of the following conditions:
(a) the Amalgamation with or without amendment, shall have been approved at the Spearhead Shareholders’ Meeting, or any adjournment thereof, in accordance with Clause 8.6) the Act and shall have otherwise been approved by the requisite majority of each persons entitled or required to vote thereon as determined by the Act and the policies of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)TSXV;
8.1.2 (b) the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effectAmalgamation with or without amendment, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed approved at the Camflo Shareholders’ Meeting, or any adjournment thereof, in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”)Act and shall have other-wise been approved by the requisite majority of persons entitled or required to vote thereon as determined by the Act and the policies of the TSXV;
8.1.4 each (c) the holders of no more than 10% of the actions set out issued and outstanding Spearhead Shares shall have exercised rights of dissent in Error! Reference source respect of the Amalgamation other than in circumstances where either Camflo or Spearhead elects to fund the repurchase of the Spearhead Shares with respect to which rights of dissent have been exercised in accordance with the provisions of applicable law;
(d) the holders of no more than 10% of the issued and outstanding Camflo Shares shall have exercised rights of dissent in respect of the Amalgamation other than in circumstances where either Camflo or Spearhead elects to fund the repurchase of the Camflo Shares with respect to which rights of dissent have been exercised in accordance with the provisions of applicable law;
(e) there shall not found. be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement;
(DD Follow-up Actionsf) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required, necessary or desirable for the completion of the transactions contemplated by this Agreement shall have been fully performed by obtained or received from the Seller and/or any Group Company persons, authorities or bodies having jurisdiction in the relevant Former Group Company, as applicablecircumstances, to include but not be limited to the reasonable satisfaction approval of the BuyerTSXV;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 g) none of the following consents, orders, regulations or approvals contemplated herein shall contain terms or conditions or require undertakings or security considered unsatisfactory or unacceptable by any of the parties hereto;
(h) this Agreement shall not have been terminated under Article 6;
(i) Camflo shall have occurred prior completed the acquisition of Spearhead’s right, title and interest in and to or the Joffre Properties on terms acceptable to both parties and shall otherwise have advanced sufficient monies to Spearhead by way of loan, on terms agreeable to both parties, so as to enable the amount of indebtedness owing by Spearhead to Paramount to be reduced by $5,000,000; and
(j) the indebtedness owing by Spearhead to Paramount shall be reduced by $5,000,000 and Paramount shall have agreed to defer repayment of the date balance of Completion: (a) any claim having been made by any third party asserting that such person is entitled indebtedness for a period and on terms acceptable to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];both parties.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything in this Donation Agreement to the contrary in this Agreementcontrary, Completion is conditional ▇▇▇▇▇’s obligation to accept the Property shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateprecedent:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer1) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Donor shall have performed each and every undertaking hereunder;
8.1.2 the Seller (2) Each and the Buyer shall have entered into all Transaction Documents every representation and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring warranty made by Donor shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each true and correct as of the actions set out in Error! Reference source not found. (DD Follow-up Actions) date this Donation Agreement is made and entered into, and shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied be true and correct in all material respects with its covenants, obligations as if originally made on and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: Closing Date;
(a3) any claim having No suit, proceeding, or investigation shall have been made commenced or threatened by any third party asserting governmental authority or private person on any grounds to restrain, enjoin, hinder, or to seek material damages on account of the consummation of the transaction contemplated hereby, and no order, ruling, decision, or judgment shall have been issued with the same effect;
(4) Preliminary approval of all licenses, rights-of-way, and easements;
(5) ▇▇▇▇▇’s review and approval, prior to the expiration of the Agreement Inspection Period, of the condition of title to the Property;
(6) ▇▇▇▇▇’s review and approval, prior to the expiration of the Agreement Inspection Period, of the Property Documents;
(7) ▇▇▇▇▇’s inspection and approval, prior to the expiration of the Agreement Inspection Period, of the physical and environmental condition of the Property;
(8) Donee’s satisfaction that such person the Property is entitled to properly zoned for Donee’s Intended Use;
(9) Donee’s satisfaction with any other information obtained through its due diligence of the Property;
(10) ▇▇▇▇▇’s receipt of all or any part required approvals and consents authorizing the purchase of or interest the Property in accordance with the terms of this Donation Agreement;
(11) The Title Company issuing a policy of title insurance of Donee’s choice insuring title on the Property in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach amount of the Seller Warranties Donation Value, subject only to the conditions of record appearing on the Preliminary Report which are not disapproved by ▇▇▇▇▇;
(12) There being no material, adverse change in the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (Property or series of breaches) of any Seller Warranties for which the aggregate liability access thereto after expiration of the Seller, if Agreement Inspection Period and prior to Closing.
(13) Donor has obtained all required consents and approvals from City and/or all other agencies or entities as necessary for the Buyer were sale and transfer of property to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Donee.
Appears in 1 contract
Sources: Land Donation Agreement
Conditions. 8.1 Notwithstanding anything 4.1 The obligations of the Seller and the Purchaser to complete the contrary sale and purchase of the Shares are in this Agreementall respects conditional on the satisfaction (or waiver, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6as the case may be) of each of the following conditions precedent those matters set out in Schedule 2 (Conditions) (the “Conditions”) by ).
4.2 In respect of the Longstop DateShareholder Consent Condition:
8.1.1 (a) the Buyer having received Seller shall use all reasonable endeavours to procure the written satisfaction of the Shareholder Consent Condition by procuring that:
(i) the board of directors of the Seller Parent obtain approval of FAS the Circular from the FCA as soon as reasonably practicable, following which the Seller Parent shall send the Circular to the shareholders of the Seller Parent as soon as practicable and in no event later than forty (40) Business Days from the signing of this Agreement;
(ii) each director of the Seller Parent shall, subject to his duties to the Seller Parent as a director, recommend and continue to recommend to the shareholders of the Seller Parent the passing of the Resolutions and such recommendation shall be contained in the Circular;
(iii) the Seller Parent shall convene a general meeting of its shareholders to consider and, if thought fit, pass the Resolutions as soon as reasonably practicable after the publication of the Circular;
(b) the Purchaser shall, upon the Seller’s request, promptly co-operate with and provide all necessary information and other assistance required in connection with the acquisition satisfaction of the Shareholder Consent Condition;
(c) the Seller shall (i) provide to the Purchaser a draft of those parts of the Circular that refer to the Purchaser or the Purchaser’s Group or to the Purchaser’s rationale for acquiring the Shares or otherwise referring to the strategy or prospects of the Group following Completion and give the Purchaser a reasonable opportunity to provide comments thereon, and (ii) subject thereto, take into account the Purchaser’s reasonable comments with respect thereto;
4.3 In respect of the Antitrust Condition and the FDI Condition:
(a) the Purchaser and the Seller shall prepare and file their respective notifications under the HSR Act and submit the same to the applicable Regulatory Authorities as soon as possible following the date of this Agreement and in any event within ten (10) Business Days of the Put Option Date, with all information required in connection therewith.
(b) the Purchaser, with the cooperation of the Seller, shall prepare and submit any other notifications, filings or submissions (or drafts thereof as appropriate in certain jurisdictions) to any applicable Regulatory Authority outside of the United States that Purchaser determines is required as soon as possible following the date of this Agreement and in any event within twenty (20) Business Days of the Put Option Date (or, with respect to the UK, twenty (20) Business Days after the Purchaser, acting reasonably, determines that the filing is required), with all information required in connection therewith.
(c) subject to applicable law, the Purchaser and the Seller shall allow each other the opportunity to participate in any call or meeting with the Regulatory Authority, promptly inform the other party of the content of any meeting, material conversation and any other substantive communication which takes place between a party (or its agents, representatives or advisers) and the Regulatory Authority in which the other party did not participate and provide copies or, in the case of non-written communications, a written summary, to the other party;
(d) subject to applicable law, the Purchaser and the Seller shall provide each other a reasonable opportunity to review and comment on drafts of all notifications, filings and submissions before they are submitted to a Regulatory Authority and provide the other party with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments that the other party may have;
(e) notwithstanding anything herein to the contrary, the Purchaser shall take any and all steps or actions necessary or required (including, but not limited to, agreeing to any (i) conditions, undertakings, sale, divestment, licence or disposition of any necessary assets or business of any Party; (ii) termination of any existing relationships, contractual rights or obligations of any Party; and / or (iii) effectuating any other change or restructuring of the Group or any member of the Purchaser’s Group) in order to obtain clearance by any Regulatory Authority in the first phase of any review (other than in the U.S.) in accordance with any applicable merger control law, statute or regulation of any applicable jurisdiction, and in any event (including in the U.S.) by the Buyer Long Stop Date; provided, however, that nothing in this Agreement shall (A) require, or be construed to require, the Purchaser to agree to sell, divest, license or otherwise dispose of or hold separate its Plum 360TM products (or the associated business and assets), or (B) prevent the Purchaser from engaging in litigation with a Regulatory Authority in support of its efforts to satisfy the Antitrust Condition;
(f) each of the Sale Shares Purchaser and in the United States, the Seller (but only in respect of any filings required to be made by the Seller under the HSR Act), shall use its reasonable endeavours to avoid any declaration of incompleteness by the Regulatory Authority or any other suspension of the periods for clearance;
(g) the Purchaser shall not, and in the United States the Seller (but only in respect of any filings required to be made by the Seller under the HSR Act) shall not, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), withdraw any conditions notification, filing or restrictions submission made to the Regulatory Authority; and
(h) the Purchaser shall bear all filing fees (and necessary translation costs) associated with the notification and filings made in order to satisfy the Antitrust Condition, with each Party bearing its own legal fees. Notwithstanding the provisions of Clause 4.3(e), if the Seller agrees at its sole discretion that the Purchaser may, before the Long Stop Date, take any action that may adversely affect the likelihood of the Purchaser obtaining any clearance in the first phase of any review in accordance with any applicable merger control law, statute or subject regulation of any applicable jurisdiction (other than the U.S.), the Purchaser shall be liable for the Seller’s legal and other professional costs resulting from agreeing to such conditions or restrictions which are reasonably satisfactory action including but not limited to relating to any second phase investigation (regardless of the Buyer) andoutcome).
4.4 The Seller and the Purchaser agree that all requests and enquiries from any Regulatory Authority shall be dealt with, if any such conditions or restrictions are imposedin each case, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 by the Seller and the Buyer Purchaser in consultation with each other and the Seller and the Purchaser shall co-operate with each other and the relevant Regulatory Authority, to the extent necessary and on a confidential basis, and provide all necessary information and assistance reasonably required by the other or by the Regulatory Authority as soon as reasonably practical upon being requested to do so, provided that any information provided in relation to the Seller shall be provided only to the Regulatory Authority and/or if necessary the Purchaser’s Lawyers on a strictly confidential basis and shall not be provided to the Purchaser.
4.5 In furtherance of the foregoing, in the event of a requirement, or in the opinion of the Seller acting reasonably a likely requirement, for an ‘up-front’ buyer remedy, the Purchaser shall (i) promptly (and in any event within one (1) Business Day) inform the Seller of all third parties who express a genuine interest in entering into an agreement with the Purchaser to ensure satisfaction of the Antitrust Condition, (ii) negotiate in good faith with any such third parties in order to ensure the satisfaction of the Antitrust Condition and (iii) keep the Seller regularly informed of progress of any such negotiations. Whether or not an ‘up front’ buyer is, or in the opinion of the Seller acting reasonably is likely to be, required, the Purchaser shall inform the Seller promptly and in any event within one (1) Business Day, of any third party offering or indicating to the Purchaser that it would be willing in principle to be an ‘upfront buyer’ if required by any Regulatory Authority, regardless of any purported duty of confidentiality expressed by any such third party relating to such offer or indication.
4.6 The Seller undertakes to notify the Purchaser in writing, and the Purchaser undertakes to notify the Seller in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date promptly after it comes to its attention.
4.7 The Parties shall use reasonable endeavours to cooperate in good faith with the other Party to effectuate any such agreement with any such third party or ‘upfront buyer’ that is required by any Regulatory Authority to ensure the satisfaction of the Antitrust Condition.
4.8 Each Party undertakes to notify the other Party as soon as possible on becoming aware that any of the Conditions has been satisfied and in any event within five (5) Business Days of such satisfaction.
4.9 No Condition may be waived without the agreement in writing of each of the Seller and the Purchaser, other than the ▇▇▇▇▇▇ SPA Termination Condition which may be waived by the Seller (in its sole discretion) without the prior written agreement of the Purchaser.
4.10 If any of the Conditions is not fulfilled or waived on or before the Long Stop Date, either Party shall be entitled to terminate this Agreement and the Put Option by providing written notice to the other Party, subject to, and on the basis set out in, Clause 17.2 (No Right to Rescind or Terminate).
4.11 By way of compensation for losses suffered by the Seller (or any member of the Seller’s Group) in connection with (i) the preparation and negotiation of the Transaction or any Transaction Document; and (ii) the potential for disruption to the business of the Seller’s Group (including, the Business), the Purchaser undertakes to promptly pay (or procure the prompt payment by a member of the Purchaser’s Group) to the Seller (or as the Seller directs) an amount equal to the Break Fee in the event that:
(a) on or prior to the Long Stop Date, any of the Conditions (other than the Shareholder Consent Condition or the ▇▇▇▇▇▇ SPA Termination Condition) shall not have entered been satisfied (or, where applicable, waived), resulting in the Transaction lapsing, terminating or otherwise not proceeding in accordance with the terms of this Agreement; or
(b) on or prior to the Long Stop Date, all of the Conditions have either been satisfied or waived (in accordance with the terms of this Agreement) but the Purchaser fails to proceed to Completion.
4.12 In relation to the Break Fee, the Purchaser acknowledges and agrees that:
(a) the Seller has incurred, and will further incur, significant costs in connection with the Transaction, which will include significant loss of business opportunity costs if the Transaction is not implemented;
(b) such Break Fee is reasonable and appropriate, is the product of an arm’s length negotiation and is justified to serve and protect the legitimate business interests of the Seller and, further, that it represents a fair and reasonable provision which is proportionate to the protection of those interests;
(c) it has received independent legal advice in relation to and in connection with the Break Fee;
(d) payment of any such Break Fee shall be without prejudice to any other claim or right of action that the Seller (or any member of the Seller’s Group) may have against the Purchaser (or any other member of the Purchaser’s Group); and
(e) the Purchaser (or relevant member of the Purchaser’s Group) shall make payment of the Break Fee by telegraphic transfer in immediately available funds to the Seller’s Designated Account.
4.13 If any deductions or withholdings are required by law to be made from any payment by the Purchaser to the Seller under Clause 4.11, then the Purchaser shall pay to the Seller such additional amount as will leave the Seller with the amount the Seller would have received in the absence of any such requirement to make a deduction or withholding.
4.14 The Purchaser undertakes that it shall not, at any time prior to Completion, either alone or acting in concert with others, acquire or offer to acquire, or cause another person to acquire or to offer to acquire, or progress or contemplate (or cause another person to progress or contemplate) arrangements which, if carried into all Transaction Documents and such Transaction Documents remain in full force and effect, subject would result in the acquisition of a competing business to the Group’s business or any amendments thereto both other business the acquisition of which might, in the opinion of the Seller acting reasonably, be expected to prejudice or delay the satisfaction of the Antitrust Condition.
4.15 For the purposes of this Agreement, “Long Stop Date” means the date that is six (6) months from the Put Option Date or such other date as the Parties may agree to in writing;
8.1.3 , provided, however, that if on such date, the Restructuring Antitrust and/or FDI Conditions have not been satisfied, then the Long Stop Date shall have been completed mean the date that is fifteen (15) months from the Put Option Date or such other date as the Parties may agree in accordance with Error! Reference source not found. writing; provided further that if on the date falling ten (Restructuring10) (Business Days prior to such extended Long Stop Date, the “Restructuring Condition”);
8.1.4 each of the actions set out Antitrust Conditions in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, so far as applicable, they relate to the reasonable satisfaction United States have not been satisfied and are not reasonably likely to be satisfied by such extended Long Stop Date, the Purchaser may serve on the Seller, no later than five (5) Business Days prior to such extended Long Stop Date, a written notice electing to extend the Long Stop Date by a period of three (3) additional months (and in such case the Buyer;
8.1.5 [***];
8.1.6 term “Long Stop Date” shall be construed to mean the Seller having complied in date as so extended) provided all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby criteria are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];satisfied:
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Icu Medical Inc/De)
Conditions. 8.1 Notwithstanding anything The consummation of the transactions contemplated by the LOI will be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (conditions: • Purchaser's satisfactory completion of a due diligence review of Innovation, its business operations and the “Conditions”) by Purchased Assets; • Collaboration between the Longstop Date:
8.1.1 Innovation and Purchaser to establish a business plan and business model for the Buyer having received the written balance of 2023; • Innovation making available to Purchaser all information necessary for Purchaser to conduct its due diligence review, including, without limitation, financial information, on or before July 1, 2023; • Innovation obtaining all required corporate approvals, including, without limitation, approval of FAS Innovation, its members/shareholders and any other party required to approve under the pertinent governing documents; • The negotiation, execution and delivery of the Definitive Agreement and any related agreements; • Satisfactory Non-Compete Agreement for Innovation (and any other principals or owners of Innovation, including, without limitation ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (3 years and in connection the states of Texas, South Carolina, and Arizona). With the exception, the principals are permitted to personally operate as CNIM providing services to surgeons or hospital facilities not working with Assure, with the acquisition by the Buyer intention of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller maintaining license requirement; • Innovation having complied in all material respects with conducted its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest operations only in the Sale Sharesordinary course of business and in compliance with applicable law; • The absence of any event that would reasonably be expected to have a material adverse effect on Innovation; • The receipt of required consents from third parties and governmental authorities, and/or including, without limitation, all third-party consents required for contract assignments, vendor accounts and other similar business relationships Innovation relies on to conduct its business in the Subsidiary Equity Interests, and/or ordinary course; • Reasonable cooperation between Purchaser and Innovation regarding the allocation of the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights • Approval of any personUS regulatory bodies/agencies having authority over the Transaction; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach • Approval of the Seller Warranties board of directors of AHC; • Approval by Purchaser and Purchaser, including, without limitation, all approvals required under the Seller having occurredgoverning documents of Purchaser and Purchaser; • Purchaser’s satisfactory review of Blue Cross Blue Shield, provided that Cigna and United Health Care processes and procedures regarding claims, including, without limitation, payments and fulfilment; and • Purchaser’s negotiation of terms of employment with Key Personnel, and negotiation of service agreements with key service providers and facility providers for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];post transaction services.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything Consummation of the Acquisition is conditioned, among other things, upon certain conditions, including:
a. Approval of the Acquisition by the boards of directors of the Company and Company.
b. Negotiation and execution of a definitive Merger Agreement in acceptable form and substance to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each Company and Buyer and the shareholders of the following Company exchanging or contributing their shares of Common Stock for equity capital of Buyer pursuant to paragraph 1 above, including representations, warranties, covenants, agreements and conditions precedent (the “Conditions”) as may be mutually agreed to by the Longstop Date:
8.1.1 the Buyer having received the written approval parties hereto and as are customarily set forth in agreements of FAS in connection with the acquisition this nature and subject, which Merger Agreement must be approved by the Buyer board of directors and stockholders of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory Company.
c. Completion of the due diligence investigations described in paragraph 4(b) below to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with , its covenants, obligations counsel and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurredadvisors, provided that for purposes of this Clause 8.1.9 “material breach” means the Merger Agreement will not contain a breach (or series of breaches) of any Seller Warranties for which due diligence condition as a condition to the aggregate liability closing of the SellerAcquisition.
d. Obtaining all third party and governmental approvals and consents, required for the Acquisition (including, without limitation, expiration or termination of the waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act, if applicable).
e. The availability of sufficient senior and subordinated mezzanine debt funds pursuant to financing commitments to enable Buyer to consummate the Buyer were to bring a Claim(sAcquisition, which financing commitments shall be on terms that are commercially reasonable. The financing is further discussed in paragraph 4(a) herein.
f. Termination of existing employment agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman of the Board and Chief Executive Officer of the Company (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)"▇▇▇▇▇"), could reasonably and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and Chief Operating Officer of the Company ("Semel"), payment of the change of control obligations due thereunder (provided that such payments shall not exceed $1.9 million to ▇▇▇▇▇ and $1.5 million to Semel) and negotiation and execution of new employment agreements with a term of three (3) years on terms satisfactory to Buyer and its counsel, provided that such new employment agreements with ▇▇▇▇▇ and Semel shall provide for compensation reductions of $289,586 and $171,836, respectively, from the annual compensation levels estimated to be expected paid in fiscal 1999 to exceed [***];▇▇▇▇▇ and ▇▇▇▇▇, and Buyer entering into voting agreements with ▇▇▇▇▇ and Semel as contemplated in paragraph 3 below.
g. There having been filed no material litigation or governmental proceeding seeking to enjoin or challenging, or seeking damages in connection with, the Acquisition.
h. There not having occurred any material adverse change in the Company's business, operating results, financial condition, properties or prospects.
Appears in 1 contract
Sources: Letter Agreement (Cmco Inc)
Conditions. 8.1 Notwithstanding anything to Clauses 3, 4 and 6 do not become binding on the contrary parties and have no force or effect, and Completion cannot take place, unless each of the conditions listed in this Agreement, Completion is conditional upon satisfaction the first column of the following table has been either satisfied or waiver (waived in accordance with Clause 8.6clause 2.4:
(a) satisfactory completion of the Buyer's due diligence as determined by the Buyer in its sole discretion; Buyer
(b) all approvals of any Regulatory Authority which the Sellers and the Buyer agree are necessary or desirable to implement the transactions contemplated by this agreement have been obtained either unconditionally or on conditions satisfactory to the Buyer acting reasonably and have not been withdrawn or revoked; Buyer
(c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction, no preliminary or final decision, determination, or order issued by any Regulatory Authority and no other legal restraint preventing any of the transactions contemplated by this agreement is in effect; Buyer
(d) no Material Adverse Change has occurred; Buyer
(e) a resolution of the shareholders of any Seller that is not a natural person has been passed at a duly convened general meeting of that Seller to approve the transactions contemplated by this agreement and entry into and performance of each of the following conditions precedent (the “Conditions”) Transaction Documents by the Longstop Date:relevant Seller; Buyer
8.1.1 (f) the Buyer having has received the written approval a certified copy of FAS in connection with each consent required under each Lease and each Key Contract to the acquisition of the Shares by the Buyer and the change of control of the Sale Company resulting from that acquisition of the Shares without any conditions or restrictions (each of which is unconditional or subject only to such conditions or restrictions which are reasonably satisfactory acceptable to the Buyer; and Buyer
(g) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Company and the Buyer shall relevant counterparties have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject executed binding agreements to any amendments thereto both Parties may agree to in writing;
8.1.3 reflect the Restructuring shall have been completed in accordance with Error! Reference source not found. following: (Restructuringi) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed royalty payment percentage payable by the Seller and/or any Group Company to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ will be reduced from 12.5% to 6% and the Company will issue to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ or their designee 400,000 Shares, and (ii) the relevant Former Group Company, as applicable, debt (inclusive of principal and accrued and unpaid interest) of AUD $1,400,000 (US $1,287,076) owed by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will be reduced to AUD $700,000 (US $643,538) of which amount AUD $645,613 (US $593,538) will be payable by the reasonable satisfaction of Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 Completion Date (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim such debt having been made by any third party asserting that such person is entitled to all or any part paid down with the payment of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; AUD $54,387 (bUS $50,000) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties earlier paid by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were Company to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Buyer
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer 4.1 The sale and purchase of the Sale Shares without any conditions or restrictions is conditional upon:
(or subject to such conditions or restrictions which are reasonably satisfactory to a) the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller Vendors having complied fully with the obligations specified in Clauses 8.1, 8.2 and 8.3 and otherwise having performed in all material respects with its covenants, obligations all of the covenants and undertakings agreements required to be performed by them under this Agreement set out Agreement;
(b) the completion of all business, financial, regulatory and legal due diligence in Clause 9 relation to the Group to the satisfaction of the Purchaser;
(Conduct c) all other consents, approvals or clearances which are necessary or which the Purchaser has been advised that it is desirable to obtain to the sale and purchase of Business before Completion; Information Rightsthe Sale Shares being granted by third parties (including any Government Authority);
8.1.7 (d) no Material Adverse Change statute, regulation or decision which would prohibit, restrict or materially delay the sale and purchase of the Sale Shares or the operation of the Company or any of the Investee Companies after Completion having occurredbeen proposed, enacted or taken by any Government Authority;
8.1.8 none (e) the approval of the following shall have occurred board of directors and shareholders of the Purchaser in relation to the sale and purchase of the Sale Shares having been obtained;
(f) each of the seven Continuing Employees having entered into a service agreement with the Company prior to or as the Completion Date on terms approved by the Purchaser and acceptable to such Continuing Employees;
(g) the Vendors and the Purchasers having agreed on the list of persons to whom the Option Shares are to be granted pursuant to Clause 3.1(d);
(h) a rental review report on the Properties having been prepared by, and delivered to, the Purchaser and the Vendors by CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, and the Company having entered into an amendment to its existing lease agreement(s) with the landlord of the date Properties on the rental value and such related terms acceptable to the Purchaser, the Vendors and the landlord in question, provided that such amendment to the lease agreement(s) will record the parties' understanding that the terms of Completion: (athe existing lease agreement(s) for the Properties shall remain unchanged for as long as any claim amounts owing to AML Trading Ltd pursuant to Clause 3.1(c) above shall remain unpaid and that such amendment to the existing lease agreement(s) shall only become effective upon full payment by the Purchaser to AML Trading Ltd of the amounts owing pursuant to Clause 3.1(c) above and the relevant annotations having been made to the Transfer Certificate of Title(s) of the Properties (including without limitation, in respect of the Company's leasehold rights);
(i) the execution by any third party asserting such persons as the Vendors shall advise pursuant to Clause 3.1(a) and the other shareholders of the Purchaser of a shareholders agreement relating to the Purchaser on terms satisfactory to each of them (the "SHAREHOLDERS AGREEMENT");
(j) confirmation or approval having been obtained by the Company from RF Monolithics, Inc. that such person is entitled to all or any part the sale of or interest in the Sale SharesShares shall not cause RF Monolithics, and/or Inc. to terminate the Subsidiary Equity Interests, and/or Manufacturing Agreement dated 22 February 2001 entered into with the Purchase Price; Company;
(bk) any claim the Company having been made by any person entered into legally binding loan agreements on terms acceptable to the Purchaser to re-finance its existing loan facilities with its existing bankers including (other than a Seller Related Entity or a Buyer Related Personi) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or Banco De Oro (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(esii)), could reasonably be expected to exceed [***];
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 3.1 The Subscription Completion is conditional upon satisfaction the following Subscription Conditions having been satisfied (or waiver (waived in accordance with Clause 8.6clause 3.6):
(a) of each the Executive Director of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer Corporate Finance Division of the Sale Shares without any conditions or restrictions SFC (or subject to such conditions or restrictions which are reasonably satisfactory to any delegate of the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the SellerExecutive Director) (the “FAS Approval Condition”Executive) having granted a waiver, pursuant to Note 1 on dispensations from Rule 26 of the Takeovers Code, from the obligation of the Subscriber to make a mandatory general offer to the Shareholders to acquire all the issued Shares and other securities of the Company not already owned or agreed to be acquired by it or any parties acting in concert with it as a result of (i) the Subscriber subscribing for the Subscription Shares and the Convertible Bonds under this Agreement; and (ii) the Subscriber obtaining the Conversion Shares upon exercise of the conversion rights of the Convertible Bonds (the Whitewash Waiver);
8.1.2 (b) all conditions attached to the Seller Whitewash Waiver having been satisfied;
(c) the Independent Shareholders having at the EGM approved the Subscription, the Whitewash Waiver, the Specific Mandate and the Buyer shall have entered into transactions contemplated thereunder;
(d) the Shareholders having at the EGM approved the Share Capital Increase and the transactions contemplated thereunder;
(e) the Company having obtained the approval from the Stock Exchange for the listing of, and permission to deal in, the Subscription Shares and the Shares to be issued upon the full conversion of the Convertible Bonds on the Main Board of the Stock Exchange;
(f) that the Subscription Completion would not result in the Company not meeting the Public Float Requirement on the Subscription Completion Date;
(g) all Transaction Documents other regulatory consents and such Transaction Documents remain authorisations of any governmental or regulatory body which are necessary and required for the purpose of implementing and completing the Transactions having been obtained and remaining in full force and effect, subject effect pursuant to the provisions of any amendments thereto both Parties may agree to laws or regulations in writingany relevant jurisdiction;
8.1.3 (h) the Restructuring shall have written approval from or the filing for inspection with the State-owned Assets Supervision and Administration Commission of the People’s Government of Jilin Province for this Agreement and the transactions (including the subscription for the Convertible Bonds) with the terms and conditions contemplated hereunder having been obtained or completed;
(i) each of the Reorganisation Documents having been duly entered into by the parties thereto and the Reorganisation having been completed in accordance with Error! Reference source the terms of the Reorganisation Documents;
(j) the Subscriber having completed its due diligence review on the Group (including but not found. limited to the business, operation, financials and legal aspects of the relevant members of the Group) and at its sole and absolute discretion being satisfied with the results of such due diligence review and having confirmed this to the Company in writing;
(Restructuringk) (where applicable or necessary) the “Restructuring Condition”);
8.1.4 each Company having obtained any necessary and required consents and given any necessary and required notifications (or having caused all relevant members of the actions set out in Error! Reference source not found. (DD Follow-up ActionsGroup to obtain such consents or give such notifications) shall have been fully performed by for the Seller and/or Transactions under any Group Company loan agreements or the security documents to which any relevant Former Group Company, as applicable, to the reasonable satisfaction member of the Buyer;Group is a borrower or an obligor; and
8.1.5 [***];
8.1.6 (l) the Seller Company having complied in with all material respects with of its covenants, obligations and undertakings under this Agreement (including those set out in Clause 9 (Conduct of Business before Completion; Information Rights);Schedule 1) in all material respects.
8.1.7 no Material Adverse Change having occurred;
8.1.8 none 3.2 The Company shall use its best endeavours to procure fulfilment of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest Subscription Conditions set out in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];clauses 3.1
Appears in 1 contract
Sources: Subscription Agreement
Conditions. 8.1 Notwithstanding anything to 4.1 The sale and purchase of the contrary in this Agreement, Completion Sale Shares is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of on each of the following conditions precedent being fulfilled, satisfied or waived (the “Conditions”):
(a) the Office of Fair Trading (OFT) having provided the OFT Decision that it does not intend to refer the proposed acquisition of the Sale Shares by the Longstop Date:Buyer, or any matter arising or relating to that proposed acquisition, to the Competition Commission for investigation (the OFT Condition);
8.1.1 (b) no Material Adverse Change occurring between the date of this Agreement and the date on which the OFT Condition is fulfilled, satisfied or waived pursuant to the provisions of clause 4.15 and, for the purposes of this clause, Material Adverse Change shall mean the implementation, notification or announcement of any change to any statutory or other binding or advisory legislative or regulatory provision (including any OFT decision or directive imposed on MEM or the short-term and/or pay day loan industry requiring a change of MEM’s then current business practices) which directly relates to or impacts the business of providing short-term and/or pay day loans and is reasonably likely to result in a reduction of £4,400,000 in the projected Profitability of the Business (using the Projections as a reference for determining such impact) for the 12 month period following such announcement.
(c) the Buyer having available to it, on an unconditional basis and on terms satisfactory to it in its sole discretion, debt financing facilities or the proceeds of an issuance of debt securities in a public and/or private offering, or any other financing, (Financing) of an amount not less than the Purchase Price (the Financing Condition); and
(d) the Minority SPA having completed in accordance with its terms (the Minority SPA Condition).
4.2 The Buyer and the Seller shall use all reasonable endeavours to procure (so far as they are each able to procure) that the OFT Condition is satisfied on or before the earlier of (i) 24 March 2011 and (ii) the date falling 50 Business Days from the date on which the OFT confirms that the form of the OFT Submission is satisfactory (the OFT Long Stop Date). In order to satisfy the OFT Condition the Buyer shall:
(a) procure the filing of a submission to the OFT (OFT Submission) as soon as reasonably practicable and in any event no later than 14 January 2011;
(b) respond as soon as reasonably practicable (with a target response time of not more than five Business Days) and in any event within any applicable time limit to any request, formal or informal, for information or other input from the OFT;
(c) not enter into (and will procure that no member of the Buyer’s Group enters into) any other acquisition agreement relating to an entity involved in either:
(i) the business of providing short-term and/or pay day loans in the UK; or
(ii) the business of providing consumer credit in the UK; which might reasonably be expected to delay, impede or prejudice the fulfilment of the OFT Condition;
(d) as soon as reasonably practicable notify the Seller of any material communication (whether written or oral) received from the OFT;
(e) give the Seller reasonable notice of and the opportunity for it or any advisers of the Seller’s Group to attend all material meetings and telephone calls with the OFT (save to the extent that the OFT expressly requests that the Seller should not be present or represented at the meeting or part(s) of the meetings); and
(f) provide the Seller with drafts of all material written approval communications intended to be sent to the OFT and give the Seller a reasonable opportunity to comment thereon and not submit its communications without the prior agreement (such agreement not to be unreasonably withheld or delayed) of FAS the Seller (save that in relation to all disclosures under this clause, business secrets and other confidential material may be provided on an outside counsel to counsel, confidential basis only), provided that nothing in sub-clauses (a) to (f) (inclusive) shall be interpreted or operate to limit the Buyer’s obligation to use all reasonable endeavours to procure that the OFT Condition is satisfied.
4.3 If the Buyer receives the OFT Decision by written notification it shall notify the Seller in writing of the fulfilment of the OFT Condition as soon as reasonably practicable and in any event with 1 Business Day of the Buyer receiving written notification.
4.4 If the OFT Condition is not satisfied on or before the OFT Long Stop Date or if the OFT Decision is to refer the proposed acquisition of the Sale Shares by the Buyer, or any matter arising or relating to that proposed acquisition, to the Competition Commission for investigation, the Buyer or the Seller may elect to terminate this agreement by written notice to the other and upon giving such notice:
(a) except for this subclause, clauses 1, 2, 10, 16, 18 and 19 all the provisions of this Agreement shall lapse and cease to have effect; but
(b) neither the lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or liabilities of either party in respect of damages for non-performance of any obligation under this Agreement falling due for performance prior to such lapse and cessation.
4.5 Contemporaneously with the Buyer using all reasonable endeavours to procure that the OFT Condition is satisfied, the Buyer shall take such steps as are, in it sole discretion, reasonable, to enable it to fulfil, satisfy or waive the Financing Condition on or before the date falling not later than twenty Business Days following the later of (i) the date on which the OFT Condition is satisfied and (ii) the date on which Required Financial Information is delivered to the Buyer, and in any event on or before 14 April 2011 (the Final Long Stop Date).
4.6 If the OFT Condition has been satisfied, there has been no Material Adverse Change prior to satisfaction of the OFT Condition but the Financing Condition is not satisfied by the Final Long Stop Date, the Buyer irrevocably undertakes to pay the Seller the Termination Fee.
4.7 The Buyer shall notify the Seller in writing of the fulfilment of the Financing Condition as soon as reasonably practicable and in any event within 1 Business Day of the Buyer becoming aware of such fulfilment.
4.8 During the period commencing on the date of this Agreement and ending on the earlier of the Final Longstop Date and the Completion Date, the Seller shall and shall procure so far as it is reasonably able to do so that each relevant member of the Seller’s Group and each Group Company shall provide, and shall cause their respective directors, officers and employees to provide, so far as they are each reasonably able to, in each case upon reasonable notice from the Buyer, and at the Buyer’s cost (but only to the extent the Seller or any member of the Seller’s Group incurs out of pocket expenses directly related to the co-operation efforts described below and in clause 4.9), such reasonable assistance and cooperation (including where necessary providing appropriate instructions to auditors), including reasonable access to information and personnel of the Group, during normal office hours, which is reasonably required for the Buyer to satisfy the Financing Condition (including the preparation of the Required Financial Information as set out in clause 4.9 and the preparation of customary proforma financial information for the 12 month period ended June 30, 2010 and the six month period ended December 31, 2010) provided that (i) such assistance and cooperation and access to information and personnel of the Group does not unreasonably interfere with the ongoing operations of any member of the Seller’s Group or any Group Company or otherwise impair, in any material respect, the ability of any officer or executive of any member of the Seller’s Group or any Group Company to carry out their duties to the relevant member of the Seller’s Group or the relevant Group Company and (ii) the Buyer agrees that it would not be reasonable to require information considered by the Seller, acting in good faith, to be commercially sensitive.
4.9 Without limiting the generality of the provisions of clause 4.8 the Seller shall, and shall procure that each relevant member of the Seller’s Group shall:
(a) use its reasonable endeavours to prepare and furnish by no later than 28 February 2011 audited consolidated financial statements for the annual financial periods ending December 31, 2008, 2009 and 2010 of the Group (the Required Financial Information), that in the opinion of the Seller and its auditors have been prepared in accordance with United States Generally Accepted Accounting Principles and include such information that in the reasonable opinion of the Seller and its auditors is required by Regulation S-X under the U.S. Securities Act of 1933, as amended (the Securities Act), as is customarily included in either public offerings under the Securities Act or private placements resold under Rule 144A of the Securities Act, to consummate the offerings of debt securities; and
(b) use its reasonable endeavours to procure that the auditors of the Group provide the Buyer with customary accountants’ comfort or negative assurance letters and consents relating to financial information of the Group Companies as reasonably requested by the Buyer.
4.10 The Seller hereby consents, and shall procure that each Group Company consents, to the use of its respective logo in connection with the acquisition Financing.
4.11 Notwithstanding anything herein to the contrary, the Seller acknowledges and agrees that the Buyer and any other member of the Buyer’s Group may publicly disclose the Required Financial Information, other material information regarding the Group and the transactions contemplated hereby in connection with the Financing and that any such disclosure shall not be deemed to be a breach of this Agreement provided that the Buyer shall provide to the Seller drafts of any public documents containing information regarding the Group which the Buyer intends to publish and shall afford the Seller not less than two Business Days to consent to the publication of such documents and shall have obtained such consent (such consent not to be unreasonably withheld or delayed).
4.12 Notwithstanding anything in this Agreement to the contrary, neither the Seller nor prior to Completion any Group Company shall be required to: (i) pay any commitment or other similar fee or incur any other liability or obligation in connection with the Financing undertaken to meet the Financing Condition (or any replacements thereof); or (ii) to indemnify any person in connection with the Financing undertaken to meet the Financing Condition. For the avoidance of doubt, Buyer shall reimburse the Seller, the Seller’s Guarantor and each member of the Group Company for all reasonable out of pocket costs, fees and expenses incurred in connection with such assistance and cooperation as may be requested and provided pursuant to clauses 4.8 to 4.11 (inclusive) above.
4.13 The Buyer shall pay to the Seller an amount equal to the amount which would be required to indemnify the Seller, each member of the Seller’s Group and each Group Company against all actions, proceedings, losses, claims, damages, liabilities, costs, charges and expenses which any of them may suffer or incur in respect of or arising in connection with the disclosure (including for the avoidance of doubt the inclusion of any information of Required Financial Information (or any part thereof) in any documentation relating to any public or private offering or placement of any equity or debt) by or on behalf of the Buyer or any member of the Buyer’s Group of any information obtained by the Buyer or any member of the Sale Shares without Buyer’s Group pursuant to the provisions of clauses 4.8 and 4.9, including the Required Financial Information but only to the extent that such Required Financial Information does not contain any conditions untrue statement of a material fact or restrictions omit to state any material fact regarding any Group Company necessary in order to make such Required Financial Information not misleading.
4.14 If any of the Conditions is not fulfilled, satisfied, or waived by the party entitled to the benefit of such Condition, or if any of the Conditions ceases to be capable of fulfilment or satisfaction, on or before the Final Long Stop Date:
(a) except for this subclause, clauses 1, 2, 4.6, 10, 16, 18, 19 all the provisions of this Agreement shall lapse and cease to have effect; but
(b) neither the lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or subject liabilities of either party in respect of damages for non-performance of any obligation under this agreement falling due for performance prior to such conditions or restrictions which are reasonably satisfactory lapse and cessation.
4.15 Subject to the BuyerSeller’s right of termination pursuant to the provisions of clause 4.4, the Buyer may at any time before the time specified in clause 4.2 or 4.5 (as the case may be) and, if any such conditions or restrictions are imposed, or otherwise affect or relate by notice to the Seller waive the Conditions or (or any of them) in whole or in part.
4.16 If the Buyer has not procured the filing of the OFT Submission on or before 14 January 2011 the Seller Group Company, reasonably satisfactory shall be entitled to terminate this Agreement by written notice to the SellerBuyer and upon giving such notice:
(a) except for this subclause, clauses 1, 2, 10, 16, 18 and 19 all the provisions of this Agreement shall lapse and cease to have effect; but
(b) neither the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer lapsing of those provisions nor their ceasing to have effect shall have entered into all Transaction Documents and such Transaction Documents remain affect any accrued rights or liabilities of either party in full force and effect, subject to respect of damages for non-performance of any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings obligation under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none falling due for performance prior to such lapse and cessation provided that if the Seller terminates this Agreement pursuant to this clause 4.16 the Seller’s only remedy shall be termination of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement..
Appears in 1 contract
Sources: Sale and Purchase Agreement (CompuCredit Holdings Corp)
Conditions. 8.1 Notwithstanding anything to 3.1 The sale and purchase of the contrary in this Agreement, Completion Sale Shares is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateupon:
8.1.1 (a) the Buyer Purchaser having received completed legal, business and financial due diligence on LifeMag and the written approval Subcos to its satisfaction and having obtained the Board and/or Shareholders’ approvals on issuing the Consideration Shares herein;
(b) all consents, approvals, authorisations or other orders of FAS all relevant regulatory authorities required for or in connection with the acquisition by the Buyer transfer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions Purchaser by the Vendor have been unconditionally obtained and are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject and all other actions have been taken by or on behalf of the Vendor to comply with all legal and other requirements applicable in Singapore or elsewhere necessary to ensure that the transfer of the Sale Shares is in accordance and do not infringe any amendments thereto both Parties may agree existing law, regulation or guidelines or the terms of any such consent, approval or authorisation including but not limited to in writingforeign ownership;
8.1.3 (c) the Restructuring shall have been completed Purchaser and/or the Vendor not having received on or prior to the Completion Date (or such other date as the parties may agree), notice of any directive, injunction or other order, which restrains or prohibits the consummation of the transactions contemplated by the S&P Agreement or there being no action on or prior to the Completion Date (or such other date as the parties may agree), seeking to restrain or prohibit the consummation thereof, or seeking damages in accordance with Error! Reference source not found. connection therewith, which is pending or any such directive, injunction or other order or action which is threatened;
(Restructuringd) (if applicable) the “Restructuring Condition”)delivery by the Vendor to the Purchaser of the Memorandum of Disclosure, in a form reasonably satisfactory to the Purchaser;
8.1.4 each of (e) the actions set out in Error! Reference source Vendor Warranties and the Purchaser Warranties contained herein not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company being untrue or the relevant Former Group Companymisleading at Completion, as applicable, to if repeated at Completion and at all times between the reasonable satisfaction date of the Buyerthis Agreement and Completion;
8.1.5 [***];
8.1.6 (f) the Seller Vendor having complied fulfilled in all material respects with its covenants, all of their obligations and undertakings under this Agreement set out required to be fulfilled on or prior to the Completion Date; and
(g) the Purchaser and/or the Vendor having fulfilled in all material respects all of their obligations under this Agreement to be fulfilled on or prior to the Completion Date.
3.2 In the event that the conditions in Clause 9 3.1 are not fulfilled by 31 June 2006 (Conduct or any other date as the Purchaser and the Vendor may agree in writing from time to time), this Agreement shall lapse and be of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following further effect and no party to this Agreement shall have occurred prior any claim against the other for costs, damages, compensation or otherwise or liability to or as of the date of Completion: other party, save for (ai) any claim having been made by any third party asserting that such person is entitled to all or any part the Purchaser against the Vendor arising from antecedent breach of or interest the terms hereof including the undertaking contained in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; this Clause 3.2 and (bii) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Vendor against the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material Purchaser arising from antecedent breach of the Seller Warranties by terms hereof including the Seller having occurred, provided that for purposes undertaking contained in this Clause 3.2 and (iii) the parties’ rights and obligations of Confidentiality under Clauses 10 and 12 which shall survive notwithstanding the determination of this Agreement pursuant to this Clause 8.1.9 “material breach” means a breach (3.2.
3.3 Each party must promptly notify the other parties if it becomes aware that any condition specified in Clause 3.1 is satisfied or series becomes incapable of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];being satisfied.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything The several obligations of the Underwriters to purchase and pay for any issue of Purchased Securities hereunder will be subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each accuracy of the following conditions precedent (representations and warranties on the “Conditions”) part of the Company herein, to the performance by the Longstop DateCompany of its obligations hereunder and to the following additional conditions precedent:
8.1.1 (a) Subsequent to the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer execution of the Sale Shares without Terms Agreement there shall not have occurred (i) any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposedchange, or otherwise affect any development involving a prospective change, in or relate to affecting the Seller business or properties of the Company or its subsidiaries which, in the judgment of a majority in interest of the Underwriters (including any Representatives), materially impairs the investment quality of the Purchased Securities or (ii) any downgrading in the rating of the Company’s debt securities or preferred stock by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Financial Services LLC or Fitch Ratings Ltd.
(b) No stop order suspending the effectiveness of the Registration Statement or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring notice that would prevent its use shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) issued and no proceedings for that purpose shall have been fully performed by instituted or, to the Seller and/or any Group knowledge of the Company or the relevant Former Group Underwriters, shall be contemplated by the Commission.
(c) The Underwriters shall have received the following:
(1) Letters of (A) PricewaterhouseCoopers LLP and (B) Deloitte and Touche LLP dated the date of the Terms Agreement and the Closing Date, in form and substance satisfactory to you, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(2) An opinion of the General Counsel or any Assistant General Counsel of the Company, as applicabledated the Closing Date, to the reasonable satisfaction effect set forth in Exhibit A hereto.
(3) A letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, dated as of the Buyer;Closing Date, to the effect set forth in Exhibit B hereto.
8.1.5 [***];(4) An opinion or opinions of counsel for the Underwriters as to such of the matters stated in clauses (2) and (3) above as you shall request.
8.1.6 (5) A certificate of any one of the Seller having complied Chief Executive Officer, Chief Financial Officer, General Counsel, the Corporate Secretary, the Controller or any Assistant Corporate Secretary of the Company, dated the Closing Date, in all material respects with its covenantswhich such officer, obligations to the best of his or her knowledge after reasonable investigation, shall state that the representations and undertakings under warranties of the Company in this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no Material Adverse Change having occurred;
8.1.8 none stop order suspending the effectiveness of the following shall Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have occurred prior been instituted or are contemplated by the Commission, and that, subsequent to the dates of the most recent financial statements in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the business, financial position or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the General Disclosure Package and the Prospectus or as described in such certificate.
(6) Certificates, dated as of the date of Completion: (a) any claim having been made the Closing Date, signed by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents Chief Financial Officer or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach Controller of the Seller Warranties Company, with respect to certain financial data contained in or incorporated by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability reference in each of the SellerGeneral Disclosure Package and the Prospectus, if in form and substance reasonably satisfactory to the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Underwriters.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 5.01 Conditions to Each Party's Obligations to Effect the Transactions Contemplated Hereby. The respective obligations of each party hereto to effect the transactions contemplated by this Agreement and the Stock Purchase Agreement shall be subject to the contrary in this Agreement, Completion is conditional upon satisfaction fulfillment at or waiver (in accordance with Clause 8.6) prior to the Closing of each of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 (a) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority, nor shall any action or proceeding brought by any governmental authority or agency be pending, which (i) prevents, restricts or delays or seeks to prevent, restrict or delay the Buyer having received consummation of the written approval transactions contemplated by this Agreement or the Stock Purchase Agreement, or (ii) seeks a material amount of FAS monetary damages in connection with the acquisition consummation of the transactions contemplated by this Agreement or the Stock Purchase Agreement.
(b) Sellers, Principals and Buyer and any other person (as defined in the HSR Act) required in connection with the transactions contemplated hereby and in the Stock Purchase Agreement to file a Notification and Report Form for Certain Mergers and Acquisitions with the Antitrust Division and the FTC pursuant to the HSR Act shall have made such filings and all applicable waiting periods with respect to each such filing (including any extensions thereof) shall have expired or been terminated.
(c) Buyer and the Company shall have filed with the FCC all requisite applications in connection with the transfer of control of all FCC-licensed satellite earth station facilities, experimental FCC authorizations, and equipment authorizations currently held by the Buyer Company pursuant to the FCC Rules, and each such application shall have been approved by the FCC.
(d) Each condition to closing set forth in the Stock Purchase Agreement shall have been fulfilled at or prior to Closing, or such condition shall have been waived by the party whose obligations under such Stock Purchase Agreement were contingent upon such condition.
(e) Seventy-five percent (75%) of the Sale Shares without any conditions or restrictions shares held by non-interested shareholders of the Company (or as defined in Section 280(g) of the Internal Revenue Code of 1986, as amended) shall have approved the payments to be made to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ under the Employment Agreement and the Confidentiality and Non-Competition Agreement.
5.02 Conditions to the Obligations of Principals to Effect the Transactions Contemplated Hereby. The obligations of Principals to effect the transactions contemplated by this Agreement and the Stock Purchase Agreement shall be further subject to such conditions the fulfillment at or restrictions which are reasonably satisfactory prior to the BuyerClosing of each of the following conditions, any one or more of which may be waived in whole or in part by any Principal in writing:
(a) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents performed and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenantsall agreements, obligations obligations, conditions and undertakings under covenants contained in this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of and the following shall have occurred Stock Purchase Agreement required to be performed and complied with by it at or prior to or the Closing and all representations and warranties of Buyer contained in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of Completion: this Agreement and as of the Closing Date (a) any claim having been made as if the Closing Date was the date of this Agreement), and Principals shall have received certificates to that effect signed by any third party asserting that such person is entitled to all the President or any part Vice President of Buyer together with such other documents, instruments and writings required to be delivered by Buyer at or interest prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise reasonably required by Buyer in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; connection herewith or therewith.
(b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that Principals shall have received an opinion from counsel to Buyer, dated the Transaction Documents or Closing Date, to the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or effect set forth in Exhibit C hereto.
(c) any injunction, judgment, order, decree or ruling of any Governmental Authority Buyer shall having been issued that
8.1.9 no material breach have delivered to Principals a copy of the Seller Warranties Certificate of Incorporation of Buyer, including all amendments thereto, certified by the Seller having occurred, provided that for purposes Secretary of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability State of the SellerState of Delaware and (ii) a certificate from the Secretary of the State of Delaware to the effect that Buyer is in good standing in such State.
(d) No actions or proceedings which have a material likelihood of success shall have been instituted or, to the knowledge of Buyer, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby.
(e) All material consents, waivers, authorizations, licenses and approvals, if any, necessary to permit Principals and Sellers to consummate the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under transactions contemplated by this Agreement and Completion was effected notwithstanding the breach(es))Stock Purchase Agreement shall have been received.
(f) All documents and instruments to be delivered at Closing or otherwise in connection with the transactions contemplated by this Agreements and the Stock Purchase Agreement shall be reasonably satisfactory in form and substance to Principals, could reasonably Sellers and their counsel.
(g) Buyer and DTN Market Communications Group, Inc. shall have performed all of their obligations under that certain Agreement Regarding Purchase of Contract and Contract Rights dated of even date herewith with the Company required to be expected performed by them prior to exceed [***];the Closing.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Data Transmission Network Corp)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement4.1 This Agreement other than Clauses 8, Completion 9, 10 and 11 is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent being satisfied and remaining satisfied up to Completion:
(a) the “Conditions”) passing by the Longstop Date:
8.1.1 board of directors and the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer shareholders of the Sale Purchaser (other than those prohibited from voting under the HKEX Listing Rules, if applicable) of all necessary resolutions at the board meeting and general meeting of the Purchaser approving this Agreement, the issue of the Consideration Shares without any conditions or restrictions to the Vendor and other transactions contemplated hereunder;
(b) the Listing Committee of the HKEX having granted an approval (either unconditionally or subject to conditions to which neither the Purchaser, Purchaser nor the Vendor shall reasonably object) for the listing of and permission to deal in the Consideration Shares and such conditions or restrictions which are reasonably satisfactory approval not being subsequently revoked prior to the Buyerissue and allotment of the Consideration Shares;
(c) andthe Purchaser Warranties given as at the date of this Agreement remaining true, if any such conditions or restrictions are imposed, or otherwise affect or relate accurate and not misleading in all material respects upon repetition of the same immediately prior to the Seller or any Seller Group Company, reasonably satisfactory Completion with reference to the Seller) (the “FAS Approval Condition”)facts and circumstances then existing;
8.1.2 (d) the Seller Vendor Warranties given as at the date of this Agreement remaining true, accurate and not misleading in all material respects upon repetition of the same immediately prior to the Completion with reference to the facts and circumstances then existing;
(e) all necessary consents, licences and approvals required to be obtained on the part of the Vendor and/or the Target Company in respect of this Agreement and the Buyer shall have entered into all Transaction Documents transactions contemplated thereunder having been obtained and such Transaction Documents remain in full force and effect; and
(f) all necessary consents, licences and approvals required to be obtained on the part of the Purchaser in respect of this Agreement and the transactions contemplated thereunder having been obtained and remain in full force and effect.
4.2 The Purchaser may waive the Condition specified in Clause 4.1(d) at any time by notice in writing to the Vendor.
4.3 The Vendor may waive the Condition specified in Clause 4.1(c) at any time by notice in writing to the Purchaser.
4.4 The Vendor and the Purchaser shall, within their respective capacities, use all their best endeavours to ensure that the Conditions shall be fulfilled by the date referred to in Clause 4.5.
4.5 If the Conditions shall not have been fulfilled (or waived in accordance with Clauses 4.2 and/or 4.3) by 31 January 2025 or such later date as the Vendor and the Purchaser may agree in writing, this Agreement and everything herein contained other than Clauses 8, 9, 10 and 11 as aforesaid shall, subject to the liability of any amendments thereto both Parties may agree party to the others in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each respect of any breaches of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by terms hereof, including the Seller and/or any Group Company or the relevant Former Group Companyobligations under Clause 4.4, as applicableantecedent thereto, to the reasonable satisfaction be null and void and of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];effect.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Conditions. 8.1 Notwithstanding anything to 3.1 The Loan is provided on the contrary following conditions: -
3.1.1 The Facility is repaid in this Agreement, Completion is conditional upon satisfaction or waiver (full by the Borrower in accordance with Clause 8.6clause 6;
3.1.2 The Borrower shall not cause or permit the Facility (or any part of it) to be used for any purpose other than for the provision and delivery of each essential supplies in accordance with the Authorised Purpose, for the avoidance of doubt the Facility shall not be used in whole or in part toward paying salaries;
3.1.3 The Borrower shall ensure that receipts incurred in securing the Authorised Purpose are kept for seven years from the date of this agreement and then securely destroyed;
3.1.4 The Borrower shall ensure open book accounting of the following conditions precedent (Facility and shall provide such details as the “Conditions”) Lender shall reasonably require in order to audit the use the Facility. Such details shall be provided within five working days of a request by the Longstop Date:Lender;
8.1.1 the Buyer having received the written approval of FAS 3.1.5 The Borrower shall ensure that they have in place adequate vehicle insurance provision in connection with the acquisition delivery of the Authorised Purpose;
3.1.6 The Borrower shall not cause or permit more that £200 (TWO HUNDRED POUNDS) to be allocated per week to any individual household unless otherwise agreed in writing by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Lender;
8.1.2 3.1.7 The Borrower may use the Seller and Facility to purchase goods for individual households provided that in providing such a service they must secure compliance with this agreement together with the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;following: -
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been Persons MUST be informed prior to agreeing to complete shopping on their behalf that their contact and household details will be shared with the Borrower.
(b) Persons MUST agree that their contact details, shopping request and details of the delivery will be retained and used for the reclamation of monies spent on their shopping.
(c) Persons MUST be informed of the existence of this agreement and provision made by any third party asserting the Borrower to ensure that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any Facility that is loaned to a person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that Borrower is recoverable by the Council after the Repayment Demand
3.1.8 The Borrower shall use best endeavours to recover the sums spent on the purchase of essential items from persons.
3.1.9 The Borrower shall use any sums recovered by them pursuant to clause 5.1.8 to re- circulate those funds for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Authorised Purpose
Appears in 1 contract
Sources: Loan Agreement
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 4.1 Conditions Completion is conditional upon satisfaction upon:
A. The Purchaser being satisfied in its sole discretion with the results of its legal, financial and business due diligence investigations contemplated by Clause 6 (Purchaser's Right of Access);
B. The Purchaser having obtained, on terms and conditions satisfactory to the Purchaser in its reasonable commercial discretion, all of the financing required to consummate the transactions contemplated by this Agreement;
C. no Material Adverse Effect having occurred with respect to the Company since the date of this Agreement;
D. All of the Material consents and approvals requested by the Purchaser and required from Governmental Authorities or waiver from any other party contracting with the Company or any other Subsidiary in order to implement fully the terms of this Agreement having been duly obtained;
E. The Purchaser having procured all Material consents and approvals requested by the Vendor and required of it from Governmental Authorities or third parties in order to implement fully the terms of this Agreement;
F. The Non-Institutional Vendors, the Company and the Subsidiaries having complied with the restrictions on the activities of the Non-Institutional Vendors, the Company and the Subsidiaries contained in Sub-Clauses 8.7 (Pending Completion) and 8.8 (Liaison on Conduct of Business) and in Paragraph 2.8(A) (Business Since the Balance Sheet Date) of Schedule 3 (Warranties and Representations) from the date hereof down to Completion;
G. No complaint, demand, action, suit, or proceeding being pending or threatened before any Court or Governmental Authority wherein an unfavorable Order would
1. prevent consummation of any of the transactions contemplated by this Agreement;
2. cause any of the transactions contemplated by this Agreement to be rescinded following consummation;
3. affect adversely the right of the Purchaser to own, operate, or control the Sale Shares or the Company; or and no such Order being in effect.
H. Each of the Vendors shall have tendered all of its Sale Shares for purchase by the Purchaser at Completion in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller terms and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes provisions of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 The obligations of the Parties to complete the contrary in Subscription pursuant to this Agreement, Completion is Agreement shall be conditional upon the satisfaction or or, if applicable, waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 3.1.1 there not having occurred at any time before Completion, any event or circumstance which renders any of the Buyer Warranties untrue, inaccurate or misleading in any material respect;
3.1.2 there not having received occurred at any time before Completion, any event or circumstance which renders any of the written approval Investor Warranties untrue, inaccurate or misleading in any misleading respect;
3.1.3 the Share Split having been completed;
3.1.4 the shares of FAS the Investor continuing to be listed on the Stock Exchange before Completion (save for any temporary suspension or halt in trading pending the release of an announcement in connection with the acquisition by the Buyer of the Sale Shares without this Agreement) and no Government Entity having raised, or expressed any conditions or restrictions (or subject intention to such conditions or restrictions which are reasonably satisfactory raise, any objection to the Buyer) and, if any listing status of such conditions shares or restrictions are imposedhaving requested, or otherwise affect expressed any intention to request, any suspension or relate to halt in the Seller trading of such shares (save for any temporary suspension or any Seller Group Company, reasonably satisfactory to halt in trading pending the Seller) (the “FAS Approval Condition”release of an announcement in connection with this Agreement);
8.1.2 3.1.5 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller Investor having complied in all material respects with its covenantsthe requirements of the Listing Rules and other Applicable Laws in connection with this Agreement and the transactions contemplated hereunder, including any requirement to make announcement, issue circular and obtain shareholders’ approval, if applicable;
3.1.6 all the authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required by Applicable Laws having been granted, received, obtained and undertakings completed; and
3.1.7 the Sale and Purchase Agreement having been entered into by the parties thereto, all conditions to completion thereof (other than the condition relating to the conditions to completion under this Agreement Agreement) having been satisfied or waived in accordance with its terms, and it not having been amended, varied, terminated, rescinded or cancelled at any time prior to Completion.
3.2 The Condition set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none 3.1.1 may be waived in writing in whole or in part by the Investor. Each of the following shall have occurred prior to Conditions set out in Clauses 3.1.2 and 3.1.4 may be waived in writing in whole or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any in part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurredCompany. The Conditions set out in Clauses 3.1.3, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller3.1.5, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];3.1.6 and
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything The obligations of the Agent hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date on behalf of Subscribers for Offered Securities to withdraw all Subscription Agreements delivered and not previously withdrawn by Subscribers unless the Agent receives, on or before each Closing Date:
(a) favourable legal opinions of the Corporation’s counsel addressed to the contrary Agent and the Subscribers, in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the offering of the Offered Securities, as applicable, including, without limitation, that:
(i) the Corporation has been duly incorporated in Delaware, is validly subsisting and has all requisite corporate power and authority to carry on its business as now conducted by it and to own its properties and assets and is qualified to carry on business in Delaware;
(ii) the Corporation has full corporate power and authority to enter into this Agreement, Completion is conditional upon satisfaction or waiver (the Agent’s Warrants and the Subscription Agreements and this Agreement, the Subscription Agreements and the Agent’s Warrants have been duly authorized by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with Clause 8.6their respective terms subject to normal qualifications including those relating to creditors’ rights generally and except that rights to indemnity may be limited by applicable law;
(iii) the execution and delivery of this Agreement, the Agent’s Warrants, and the Subscription Agreements, and the fulfilment of the terms hereof and thereof by the Corporation, and the performance of and compliance with the terms of this Agreement (including, without limitation, the grant of the Over-Allotment Option), the Agent’s Warrants and the Subscription Agreements by the Corporation do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, (i) any laws in the Province of Alberta; (ii) any term or provision of the articles or by laws of the Corporation, or (iii) so far as counsel is aware, any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which the Corporation is bound on the Closing Date, which might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of each of the following conditions precedent Corporation or the Corporation’s Subsidiaries (the “Conditions”taken as a whole) by the Longstop Date:or its properties or assets;
8.1.1 the Buyer having received the written approval of FAS (iv) all Applicable Securities Laws in connection with the acquisition creation, offering, issuance and sale of the Offered Securities and the creation, issuance and delivery of the Agent’s Warrants have been complied with;
(v) in reliance upon a certificate of an officer of the Corporation, except as a result of any agreement to which the Corporation is not a party and of which the Corporation has no knowledge, the Flow-Through Shares, at the time of issuance, will be Flow-Through shares as defined in subsection 66(15) of the Act and will not constitute “prescribed shares” for purposes of Regulation 6202.1 of the Regulations of the Act; and additionally, relating to:
(vi) the first trade in the Offered Securities (including any Over-Allotment Shares issuable upon exercise of the Over-Allotment Option) and the Common Shares received upon exercise of the Agent’s Warrants; and as to all other legal matters as the Agent or Agent’s counsel may reasonably request, including, compliance with Applicable Securities Laws in any way connected with the creation, issuance, sale and delivery of the Offered Securities, the first trade of the Offered Securities and the Common Shares issuable upon exercise of the Agent’s Warrants, being subject to a hold period, including a four month and a day hold period under Applicable Securities Laws in the Selling Jurisdictions (subject to the conditions provided for under the Resale Rules). It is understood that the respective counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the Buyer laws of jurisdictions other than Alberta, British Columbia, Ontario or Québec and on certificates of officers of the Sale Corporation and the auditors of the Corporation and the registrar and transfer agent of the Common Shares without any conditions or restrictions as to relevant matters of fact;
(b) a certificate of the Corporation dated the Closing Date, addressed to the Agent and the Agent’s counsel and signed on the Corporation’s behalf by its Chief Executive Officer and Chief Financial Officer (or other senior officer of the Corporation acceptable to the Agent), certifying that:
(i) the Corporation has complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Corporation set forth in this Agreement are true and correct at the Closing Time, as if made at such time except for any increase in the number of issued Common Shares resulting from the exercise of stock options or share purchase warrants referred to in subparagraph 6(u) of this Agreement;
(iii) no event of a nature referred to in subparagraphs 12(a), (b), (c) or (d) has occurred or to the knowledge of such officers is pending, contemplated or threatened, excluding with respect to subparagraphs 12(b), (c) and (d) of this Agreement any obligation to make a determination as to the Agent’s opinion; and
(iv) the Corporation has made or obtained on or prior to the Closing Time, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the execution and delivery of this Agreement, the offering and sale of the Offered Securities and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the applicable Closing Date, and the Agent shall have no knowledge to the contrary;
(c) definitive certificates representing, in the aggregate, all of the Offered Securities, issued on the applicable Closing Date and registered in such conditions name or restrictions which are names as the Agent shall notify the Corporation in writing not less than twenty-four (24) hours prior to each Closing Time; and
(d) copies of the Subscription Agreements delivered by the Agent and duly executed by the Corporation, each in form and substance reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller Agent and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agent’s counsel.
Appears in 1 contract
Conditions. 8.1 Prior to the termination or expiration of the ---------- Lease, the Owner Participant shall not assign, convey or otherwise transfer any of its right, title or interest in and to this Trust Agreement, the properties of the Owner Trustee pledged or mortgaged as part of the Indenture Estate, the Participation Agreement or the Indemnity Agreement; provided, however, that the -------- ------- Owner Participant may after the Delivery Date convey to any one person (hereinafter in this Article 9 referred to as the "Transferee") all, but not less than all, of its right, title and interest in and to this Trust Agreement, the properties of the Owner Trustee pledged or mortgaged as part of the Indenture Estate, the Participation Agreement or the Indemnity Agreement, but only if (i) the Transferee is a Citizen of the United States (if and so long as such citizenship is required under the Act to permit the United States registration of the Aircraft (it being understood that the existence of any such requirement shall be determined without giving consideration to any provision of the Act (or any superseding statute) which permits United States registration of an Aircraft based on conditions which impose restrictions on the location and use of the Aircraft or otherwise restrict the ability of an air carrier to operate the Aircraft in the ordinary course of its business)), or shall use a voting powers trust or similar arrangement in order to hold the Trust Estate such that the Aircraft can be registered in the United States without imposing restrictions on the location or use of the Aircraft, the ability of an air carrier to operate the Aircraft in the ordinary course of its business or the ability of Lessee to exercise its rights under the Operative Documents, and has the requisite power and authority to enter into and carry out the transactions contemplated hereby, (ii) the Transferee enters into an agreement or agreements (such agreement to include representations and warranties (and, with respect to citizenship, to reflect whether or not the Transferee is making use of a voting powers trust or similar arrangement) substantially similar to those made by the original Owner Participant in the Participation Agreement as reasonably requested by the Indenture Trustee, including but not limited to, the representation and warranty contained in Sections 7(b)(iii), (iv) and (viii) of the Participation Agreement, assuming the truth of the representations, warranties and covenants contained in the Certificates, Sections 6(a)(xx) and 7(e) of the Participation Agreement, Section 10.06 of the Indenture and Section 6.06 of the Pass Through Agreement and to be accompanied by a favorable opinion of counsel with respect to the due authorization, execution, delivery and enforceability of such agreement and such other matters as may be reasonably requested), whereby the Transferee confirms that it shall be deemed a party to the Participation Agreement and a party to this Trust Agreement and agrees to be bound by all the terms of, and to undertake all of the obligations of, the Owner Participant making such conveyance contained in the Participation Agreement and this Trust Agreement to the extent of the right, title or interest being conveyed and, if not otherwise amenable to service of process in the State of New York, appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, as its agent for service of process in connection with the Participation Agreement and this Trust Agreement, (iii) such conveyance does not violate any provision of the Act, or other law or regulation or create a relationship which would be in violation thereof, assuming the truth of the representations, warranties and covenants contained in Sections 6(a)(xx) and 7(e) of the Participation Agreement, Section 10.06 of the Indenture and Section 6.06 of the Pass Through Agreement and the Certificates, (iv) the Transferee is not an employee benefit plan subject to ERISA or an individual retirement account or a plan subject to Section 4975 of the Code and (v) the Transferee is not, without the consent of Lessee (which consent shall not be unreasonably withheld), an airline (or other commercial aircraft operator or Affiliate thereof) which is in direct competition with Lessee, and (vi) the Transferee is (A) a bank, trust company, insurance company, pension trust, finance or leasing corporation or other corporation or financial institution, in each case with a combined capital and surplus or net worth, as the case may be, of at least $75,000,000 (a "Permitted Institution"), or (B) (i) a corporation which is a member of the same consolidated group for tax purposes as such original Owner Participant (a "Permitted Affiliate"), or (ii) a corporation which is the subsidiary of a Permitted Institution, under either case in this clause (B) the obligations of which are guaranteed by the original Owner Participant or a Permitted Institution, as the case may be, pursuant to a written guaranty together with a favorable opinion of counsel to the guarantor (such guaranty and opinion to be in form and substance reasonably satisfactory to Lessee, WTC and, so long as the Lien of the Indenture has not been released, the Indenture Trustee) unless such transferee corporation has a combined capital and surplus or net worth, as the case may be, of at least $75,000,000. Upon any such conveyance by the Owner Participant as above provided and as provided in Section 16 of the Participation Agreement, the Transferee shall be deemed an Owner Participant for all purposes of this Trust Agreement, and shall be deemed to have made that portion of the Commitment for the Aircraft previously made by the Owner Participant making such conveyance and represented by the interest being conveyed and each reference herein to the Owner Participant making such conveyance shall thereafter be deemed a reference to the Transferee for all purposes. If the Owner Participant shall make any conveyance to a Transferee meeting the requirements of clause (A) or (B) above, the Owner Participant shall be released (except to the extent of any guaranty provided by it under clause (vi)(B) of the preceding paragraph) from all liabilities and obligations under this Trust Agreement and any other Operative Document to the extent such liabilities and obligations arise after such transfer; provided that -------- the Owner Participant (and its Affiliates, successors, assigns, agents, servants, representatives, directors and officers) will continue to have the benefit of any rights or indemnities vested or relating to events prior to such transfer. Notwithstanding anything to the contrary contained in this AgreementSection 9.01, Completion is conditional upon satisfaction the merger or waiver (in accordance with Clause 8.6) of each consolidation of the following conditions precedent Owner Participant with any other corporation or association (the “Conditions”"New Corporation") by shall not constitute an assignment, conveyance or transfer for purposes of this Section 9.01; provided, -------- however, the Longstop Date:
8.1.1 Owner Participant shall give notice as promptly as practicable to ------- the Buyer having received Owner Trustee, the written approval of FAS in connection with the acquisition by the Buyer Indenture Trustee, and Lessee of the Sale Shares without any conditions consummation of the merger or restrictions (or subject to such conditions or restrictions consolidation, which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer notice shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effectbe given, subject to any amendments thereto both Parties may agree applicable securities laws, upon the earliest of (i) such information becoming publicly available, (ii) any action or consent by the Owner Participant or Lessee under the Operative Documents required in connection with such merger or consolidation, and (iii) the consummation of such merger or consolidation; provided, however, that such merger or consolidation shall not cause any right, -------- ------- title or interest of the Owner Participant in and to in writing;
8.1.3 this Trust Agreement, the Restructuring properties of the Owner Trustee pledged or mortgaged as part of the Indenture Estate, the Participation Agreement or the Indemnity Agreement to become an asset (within the meaning of ERISA and any applicable rules and regulations) of an employee benefit plan subject to Title I of ERISA or of an individual retirement account or a plan subject to Section 4975 of the Code. If the New Corporation is an airline operating regularly scheduled commercial jet passenger or cargo transport service on domestic United States routes or an Affiliate of such an airline and Lessee does not approve of the New Corporation as the Transferee of the Owner Participant, the Owner Participant and Lessee shall have been completed the respective rights and obligations set forth in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each Section 16 of the actions set out Participation Agreement. All expenses in Error! Reference source not found. (DD Follow-up Actions) connection with any such transfer shall have been fully performed by be for the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction account of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in Owner Participant. The Owner Participant may at any time assign, convey or otherwise transfer any or all material respects with of its covenantsright, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of title or interest in and to the Sale Shares, and/or residual value of the Subsidiary Equity Interests, and/or the Purchase Price; Aircraft (bincluding without limitation a transfer of all or a portion of (1) any claim having been made by any person (other than net proceeds from a Seller Related Entity sale or a Buyer Related Person) asserting that re-lease of the Transaction Documents Aircraft whether at the end of the Basic Term or the Transactions contemplated hereby are illegal Renewal Term, if any, or invalid pursuant to any provision of the Lease or violate otherwise or (2) the rights net proceeds received as a result of an Event of Loss or an Event of Default) and any transferee thereof need not satisfy the requirements for a "Transferee" hereunder so long as the Owner Participant otherwise remains the holder of the beneficial interest in the Trust Estate. If there is more than one Owner Participant, no assignment, conveyance or other transfer by an Owner Participant of any person; of its right, title or (c) any injunctioninterest in and to this Trust Agreement or the Trust Estate shall be valid unless each other Owner Participant's prior written consent is given to such assignment, judgmentconveyance or other transfer, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably consent may be expected to exceed [***];withheld in such other Owner Participant's sole discretion.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 6.1 Conditions to the contrary Obligations of Each Party. The obligations of the Company and the Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions:
(a) No Governmental Authority of competent authority or jurisdiction shall have issued any order, injunction or decree, or taken any other action, that is in effect and restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby; and
(b) The parties shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by this Agreement.
6.2 Conditions to the Obligations of the Principals and the Company. The obligations of the Company and the Principals to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following further conditions:
(a) The Purchaser shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing;
(b) The representations and warranties of the Purchaser contained in this Agreement shall have been true and correct when made and in all material respects at and as of the time of the Closing as if made at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case it shall be true and correct as of such date);
(c) The Company shall have received a certificate signed by the Purchaser to the foregoing effect; and
(d) The Purchaser shall have delivered to the Company written instruments, in forms reasonably satisfactory to the Company, evidencing the Purchaser’s ability to pay by wire transfer of immediately available funds at least one (1) business day prior to the Closing, all funds necessary to satisfy the Purchaser’s obligations to the Company under Section 2.2 hereof.
(e) Termination by the Company, prior to the Closing, of any contracts or agreements in existence (other than agreements with the Company’s transfer agent or which are transferred to the Operating Subsidiary) that the Buyer, in its sole discretion, determines should be terminated, and that such termination shall not result in any additional liability or cost to the Company.
(f) The delivery to the Purchaser of all releases, novations, agreements with creditors and evidences of the payment, with respect to the Transferred Obligations (as defined below).
(g) On or prior to the Closing Date, the Company shall cause, at its cost and expense, to have timely filed its federal and state income tax returns for the year ended August 31, 2009.
(h) The Company shall have transferred all of the assets, business operations and contracts of its breast cancer detection business to the Operating Subsidiary, and the Operating Subsidiary shall have assumed, and be solely responsible for the payment of, all outstanding liabilities, obligations and indebtedness of the Company (“Transferred Obligations”), and indemnify the Company against all such Transferred Obligations. The Purchaser shall assist in preparing all agreements and other documentation necessary to create the Operating Subsidiary and to effect to transfer of the foregoing assets and obligations to the Operating Subsidiary (the “Transfer”). The Transfer shall be completed within two (2) business days following the execution of this Agreement. The Principals each shall have agreed to indemnify the Company for any liability, cost or expense actually paid by the Company for any Transferred Obligations.
6.3 Conditions to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following further conditions:
(a) The Company shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing;
(b) At least ten (10) days have expired since the filing of the Information Statement with the SEC, and any comments received from the SEC during such ten (10) day period have been responded to, or otherwise handled, to the mutual satisfaction of the Company and the Purchaser.
(c) The representations and warranties of each Company contained in this Agreement shall have been true and correct when made and at and as of the time of the Closing as if made at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case it shall be true and correct as of such date);
(d) The Purchaser shall have received a certificate signed by each Company to the foregoing effect;
(e) The Shares being sold to the Purchaser hereunder for the Purchase Price shall represent 94.5% of the issued and outstanding shares of the Company’s Common Stock on a Fully-Diluted Basis;
(f) The Company shall have delivered to the Purchaser written instruments, in forms reasonably satisfactory to the Purchaser, evidencing the payment of the Company Closing Obligations, subject to the provisions of this Agreement, Completion is conditional upon satisfaction as well as any additional liabilities or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) obligations incurred by the Longstop Date:
8.1.1 Company since the Buyer having received date of this Agreement, including any and all liabilities or obligations incurred by the written approval of FAS Company in connection with the acquisition transactions contemplated by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(esCompany Closing Obligation)), could reasonably be expected to exceed [***];.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything (a) The obligations of the Company to consummate the contrary in transactions contemplated by this Agreement, Completion is conditional upon satisfaction or waiver including the Debt Conversion and the Financing, shall be subject to the fulfillment of the following conditions:
(in accordance with Clause 8.6i) The representations and warranties of each of the following conditions precedent Holders set forth in Section 3 hereof shall be true and correct on and as of the Closing date and a certificate certifying such shall be delivered.
(the “Conditions”ii) All proceedings, corporate or otherwise, to be taken by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS Holders in connection with the acquisition consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Buyer of Company or the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Holders shall have been obtained in form and substance reasonably satisfactory to the BuyerCompany.
(iii) and, if any such conditions or restrictions are imposed, or otherwise affect or relate The Shareholder Approval shall be obtained by the necessary affirmative vote of the shareholders of the Company as described above in Section 1.
(iv) Each of the Holders shall have delivered to the Seller Company for cancellation their Notes or an affidavit of loss and indemnity and the purchase price for the Placement Shares to be purchased by the Holders pursuant to the Purchase Commitment.
(b) The obligations of the Holders to subscribe for the Placement Shares they will purchase pursuant to the Purchase Commitment shall be subject to the fulfillment of the following conditions on or prior to the Commitment Date:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and as of such date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, required to be taken by the Company on or prior to such date in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any Seller Group Company, governmental or regulatory authority or other third party required to be obtained by the Company or the Holders on or prior to such date shall have been obtained in form and substance reasonably satisfactory to the SellerHolders.
(iii) The Shareholder Approval shall be obtained by the necessary affirmative vote of the shareholders of the Company as described above in Section 1.
(iv) The Company shall have caused the “FAS Approval Condition”);Conversion Shares and Placement Shares to be approved for listing on the American Stock Exchange or any national securities exchange on which the Common Stock is then listed.
8.1.2 (v) The Holders shall have received a legal opinion of Graubard Miller, counsel to the Seller Company, addressed to the Holders dat▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇ate covering such matters as is customary of transactions of this nature and in form and substance reasonably satisfactory to the Holders.
(c) The obligations of the Holders to consummate the Debt Conversion and the Buyer Purchase Commitment shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, be subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each fulfillment of the actions set out in Error! Reference source not found. following conditions on or prior to the Closing Date:
(DD Follow-up Actionsi) All of the conditions of Section 4(b) shall have been fully performed satisfied substituting all references to the Commitment Date in each such condition with references to the Closing Date.
(ii) The Required Registration Statement (defined below) shall have been declared effective by the Seller and/or any Group Company Commission.
(d) In the event that either of the Holders (or the relevant Former Group Company, as applicable, its permitted assigns) shall have failed to (i) deliver to the reasonable satisfaction Company for cancellation such party's Note or an affidavit of loss and indemnity or (ii) fulfill its Purchase Commitment (in either case, a "Breaching Party"), the Buyer;
8.1.5 [***];
8.1.6 other Holder ("Non-breaching Party") shall have the Seller having complied in all material respects with its covenants, obligations and undertakings under right to terminate this Agreement set out in Clause 9 (Conduct without any breach of Business before Completionthis Agreement on such Non-breaching Party's part; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Sharesprovided, and/or the Subsidiary Equity Interestshowever, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or Breaching Party shall remain liable to the Transactions contemplated hereby are illegal or invalid or violate Company for the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];its obligations hereunder.
Appears in 1 contract
Sources: Debt Conversion Agreement (Ladenburg Thalmann Financial Services Inc)
Conditions. 8.1 Notwithstanding anything (A) The obligation of the Transferee to purchase the contrary in this Agreement, Completion Sale Shares from the Transferor is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of and subject to the following conditions precedent (being satisfied upon the “Conditions”) date of the Transfer Closing unless otherwise waived by the Longstop Date:Transferee in writing (such waiver can be in whole, in part or conditional):
8.1.1 (a) the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer closing of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)IPO having taken place;
8.1.2 (b) the Seller representations and warranties of the Buyer shall have entered into all Transaction Documents Transferor contained in this Agreement remaining true, complete, accurate and such Transaction Documents remain not misleading in full force and effect, subject to any amendments thereto both Parties may agree to in writingmaterial respect at the Transfer Closing as if repeated at the Transfer Closing;
8.1.3 (c) the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully Transferor having performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having and complied in all material respects with its all covenants, agreements, obligations and undertakings under conditions contained in this Agreement set out in Clause 9 (Conduct of Business that are required to be performed or complied with by the Transferor on or before Completion; Information Rights)the Transfer Closing;
8.1.7 no Material Adverse Change (d) irrevocable waivers by the Company and ▇▇. ▇▇▇ ▇▇▇ waiving their respective rights of first refusal on the Transfer which exist in relation to the Sale Shares under the M&AA, the Investor Rights Agreement or otherwise having occurredbeen obtained and remaining in effect;
8.1.8 none (e) irrevocable consent from the Representatives agreeing the Transfer.
(B) The obligation of the Transferor to sell the Sale Shares to the Transferee is conditional upon and subject to the following shall have occurred prior to or as of conditions precedent being satisfied upon the date of Completion: the Transfer Closing unless otherwise waived by the Transferor in writing (such waiver can be in whole, in part or conditional):
(a) any claim the closing of the IPO having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; taken place;
(b) the representations and warranties of the Transferee contained in this Agreement remaining true, complete, accurate and not misleading in any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that material respect at the Transaction Documents or Transfer Closing as if repeated at the Transactions contemplated hereby are illegal or invalid or violate the rights of any personTransfer Closing; or and
(c) any injunctionthe Transferee having performed and complied in all material respects with all covenants, judgmentagreements, order, decree obligations and conditions contained in this Agreement that are required to be performed or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties complied with by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (Transferee on or series of breaches) of any Seller Warranties for which before the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Transfer Closing.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything 3.1 The obligations of the Parties to complete the contrary in Subscription pursuant to this Agreement, Completion is Agreement shall be conditional upon the satisfaction or or, if applicable, waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Dateconditions:
8.1.1 3.1.1 there not having occurred at any time before Completion, any event or circumstance which renders any of the Buyer Warranties untrue, inaccurate or misleading in any material respect;
3.1.2 there not having received occurred at any time before Completion, any event or circumstance which renders any of the written approval Investor Warranties untrue, inaccurate or misleading in any misleading respect;
3.1.3 the Share Split having been completed;
3.1.4 the shares of FAS the Investor continuing to be listed on the Stock Exchange before Completion (save for any temporary suspension or halt in trading pending the release of an announcement in connection with the acquisition by the Buyer of the Sale Shares without this Agreement) and no Government Entity having raised, or expressed any conditions or restrictions (or subject intention to such conditions or restrictions which are reasonably satisfactory raise, any objection to the Buyer) and, if any listing status of such conditions shares or restrictions are imposedhaving requested, or otherwise affect expressed any intention to request, any suspension or relate to halt in the Seller trading of such shares (save for any temporary suspension or any Seller Group Company, reasonably satisfactory to halt in trading pending the Seller) (the “FAS Approval Condition”release of an announcement in connection with this Agreement);
8.1.2 3.1.5 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller Investor having complied in all material respects with its covenantsthe requirements of the Listing Rules and other Applicable Laws in connection with this Agreement and the transactions contemplated hereunder, including any requirement to make announcement, issue circular and obtain shareholders’ approval, if applicable;
3.1.6 all the authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required by Applicable Laws having been granted, received, obtained and undertakings completed; and
3.1.7 the Sale and Purchase Agreement having been entered into by the parties thereto, all conditions to completion thereof (other than the condition relating to the conditions to completion under this Agreement Agreement) having been satisfied or waived in accordance with its terms, and it not having been amended, varied, terminated, rescinded or cancelled at any time prior to Completion.
3.2 The Condition set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none 3.1.1 may be waived in writing in whole or in part by the Investor. Each of the following Conditions set out in Clauses 3.1.2 and 3.1.4 may be waived in writing in whole or in part by the Company. The Conditions set out in Clauses 3.1.3, 3.1.5, 3.1.6 and 3.1.7 may not be waived by any Party.
3.3 The Investor shall have occurred prior use its reasonable endeavours to or as procure the satisfaction and continued satisfaction of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest Conditions set out in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person Clause 3.1 (other than a Seller Related Entity or a Buyer Related Personthe Condition set out in Clauses 3.1.1) asserting that as soon as practicable and in any event prior to the Transaction Documents or Longstop Date. The Company shall use its reasonable endeavours to procure the Transactions contemplated hereby are illegal or invalid or violate satisfaction and continued satisfaction of the rights Conditions set out in Clauses 3.1.1, 3.1.3, 3.1.6 and 3.1.7 as soon as practicable and in any event prior to the Longstop Date.
3.4 Each Party undertakes to give notice to the other Party of the occurrence of any person; event or circumstance that is likely to cause a Condition not to be satisfied prior to the Longstop Date as soon as practicable and in any event within five (c5) any injunction, judgment, order, decree Business Days after becoming aware of such event or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];circumstance.
Appears in 1 contract
Sources: Subscription Agreement (E-House (China) Enterprise Holdings LTD)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 5.1 Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of is conditional on the Sale Shares without any conditions or restrictions following Conditions being satisfied (or subject in addition to such conditions or restrictions which the Conditions set out in clause 13.1) on terms that are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to waived by the Seller or Buyer in accordance with clause 5.5:
5.1.1 each of the Warranties remaining true, accurate and not misleading in all material respects as at Completion;
5.1.2 there having been no material breach by any Seller of its obligations under this Agreement between the date of this Agreement and Completion, provided that any failure by the Sellers to obtain the approval of all Shareholders to amend the Shareholders’ Agreement shall not constitute a material breach for the purposes of this clause 5.1.2;
5.1.3 any and all consents, approvals and waivers in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated under this Agreement (including the acquisition of the Sale Shares by the Buyer, the issuance of the Convertible Bond, the amendment of the Shareholders’ Agreement in the form of the Amended Shareholders’ Agreement and the amendment and restatement of the memorandum and articles of association of the Company in the form of the Amended Articles) having been obtained and remaining in full force and effect as at Completion, and no such consent, approval or clearance having been revoked or modified prior to Completion;
5.1.4 there being no litigation, regulatory action or other legal, regulatory, or other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the consummation of any of the transactions contemplated under this Agreement;
5.1.5 no Group CompanyCompany Material Adverse Effect having occurred between the date of this Agreement and Completion; and
5.1.6 the Sellers being, and remaining as, shareholders of the Company and holding in aggregate more than fifty per cent. (50%) of the total issued share capital in the Company at all times between the date of this Agreement and Completion.
5.2 Completion by the Sellers is conditional on the following Conditions being satisfied on terms that are reasonably satisfactory to the Seller) (Sellers, or waived in accordance with clause 5.5:
5.2.1 each of the “FAS Approval Condition”)Buyer Warranties that are qualified with respect to materiality shall remaining true, accurate and not misleading in all respects, and each of the Buyer Warranties that are not so qualified shall be true, accurate and not misleading in all material respects, in each case as of the date hereof and as at Completion, except for those Buyer Warranties that are as of a specific date, which shall be true, accurate and not misleading as of such date;
8.1.2 5.2.2 any and all consents, approvals and waivers in connection with the Seller execution, delivery and performance of this Agreement and the Buyer shall have entered into all Transaction Documents consummation of the transactions contemplated under this Agreement (including the acquisition of the Sale Shares by the Buyer, the issuance of the Consideration Shares and such Transaction Documents remain the purchase of Convertible Bond by the Buyer) having been obtained and remaining in full force and effecteffect as at Completion, subject and no such consent, approval or clearance having been revoked or modified prior to any amendments thereto both Parties may agree to in writingCompletion;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company 5.2.3 there being no litigation, regulatory action or the relevant Former Group Companyother legal, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to regulatory or as of the date of Completion: (a) any claim having been made by any third party asserting other administrative proceedings that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could would reasonably be expected to exceed [***];prohibit, enjoin, challenge, interfere or delay the consummation of any of the transactions contemplated under this Agreement; and
5.2.4 no Buyer Material Adverse Effect having occurred between the date of this Agreement and Completion.
5.3 Each Warrantor shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 5.1 and undertakings set out in clause 13.1 as soon as possible after the date of this Agreement and in any event not later than the Completion Date. The Buyer shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 5.2 as soon as possible after the date of this Agreement and in any event not later than the Completion Date.
5.4 If, at any time, any of the parties becomes aware of a fact or circumstance that might prevent a Condition being satisfied by the Longstop Date, it shall immediately inform the Buyer (in the case of any Seller becoming aware of such fact or circumstance) or the Sellers (in the case of the Buyer becoming aware of such fact or circumstance).
5.5 At any time on or before the Completion Date, the Buyer may waive any Condition set out in clauses 5.1 or undertakings set out in clause 13.1 by Notice to the Sellers on any terms it decides, and the Sellers may waive any Condition set out in clause 5.2 by Notice to the Buyer on any terms he decides.
5.6 If the Warrantors fail to satisfy, or procure the satisfaction of, any Condition set out in clauses 5.1 or 13.1 or the Buyer fails to satisfy, or procure the satisfaction of, any Condition set out in clause 5.2 (each a “CP Defaulting Party”), in each case by 5.00 p.m. on the Longstop Date, and the Buyer (if any Warrantor is a CP Defaulting Party) or the Sellers (if the Buyer is a CP Defaulting Party) does not waive such Condition, the CP Defaulting Party shall be entitled to remedy such failure and achieve the satisfaction of the relevant Condition within twenty (20) Business Days after the Longstop Date (the “Cure Period”). If, following expiry of the Cure Period, the relevant Condition remains unsatisfied and the Buyer (for any Condition set out in clause 5.1 or 13.1) or the Sellers (for any Condition set out in clause 5.2) has not waived such Condition before the expiry of the Cure Period, this Agreement shall automatically terminate with immediate effect, and the Company shall indemnify the Buyer (if any Warrantor is the CP Defaulting Party) or the Buyer shall indemnify the Company (if the Buyer is the CP Defaulting Party) (the Buyer or the Company (as applicable) who is being indemnified shall be a “CP Non-defaulting Party”) for a breach of the obligations of the Buyer or the Warrantors respectively under clause 5.3, and keep the CP Non-defaulting Party indemnified, on demand against all external advisor fees and any other fees directly incurred by the CP Non-defaulting Party relating to the transactions contemplated by the Transaction Documents (including the negotiation, preparation, execution and performance by it of this Agreement and of each other Transaction Document), up to the Reimbursement Cap.
5.7 If this Agreement is terminated pursuant to clause 5.6, each party’s further rights and obligations cease immediately on termination, but termination does not affect a party’s accrued rights and obligations as at the date of termination or its rights and obligations arising as a result of termination, provided that the remedies set forth in clause 5.6 shall be the CP Non-defaulting Party’s sole and exclusive remedy for any claim made by CP Non-defaulting Party against the CP Defaulting Party for the termination of this Agreement pursuant to clause 5.6 (unless the termination of this Agreement is as a result of any fraud or wilful misconduct of the CP Defaulting Party).
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Prenetics Global LTD)
Conditions. 8.1 Notwithstanding anything The following obligations of the Company shall be satisfied or fulfilled on or prior to the contrary date of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing or comparable certificate or telegram from the Secretary of State or other appropriate authority where the Company and each U.S.- based Subsidiary is incorporated and each other jurisdiction in which the Company and any of the Subsidiaries is qualified to do business as a foreign corporation; (ii) the certificate of incorporation of the Company and each Subsidiary, as currently in effect, certified by the Secretary of State or other appropriate authority of the state where the Company and each Subsidiary is incorporated; (iii) a certified copy of the filed Articles of Amendment setting forth the designation, preference rights, qualifications, limitations or restrictions of the Series B Preferred Stock; (iv) by-laws of the Company certified by the secretary of the Company; and (v) certified resolutions of the Board of Directors of the Company approving this Agreement, the execution of the Series B Preferred Stock, the Exchange Offer and the Placement Agent Warrants, the registration of the Registerable Securities and the other transactions contemplated by the Series B Preferred Stock.
(b) There shall have occurred no material adverse event affecting the Company or the Subsidiaries or any of their respective businesses or assets or the Company's securities since the date of this Agreement which has had or will have a Material Adverse Effect.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company or any of the Subsidiaries which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect or have a material adverse effect on the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or other instrument to which it is a party, except as disclosed in the Financial Statements or the Memorandum and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all material respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's or Subsidiaries= charter or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a material breach or default thereof by the Company or any Subsidiary or would cause acceleration of any material obligation of the Company or any Subsidiary, or could materially and adversely affect the business, operations or financial condition of the Company.
(e) The Placement Agent shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, dated as of the closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have prepared and filed or delivered to counsel for filing with the SEC and any states in which such filing is required, a Form D relating to the sale of the Series B Preferred Stock and such other documents and certificates as are required.
(g) Subscriptions for at least the Minimum Amount of Series B Preferred Stock shall have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a result of the failure of the Company to comply with any of its obligations set forth in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent (the “Conditions”) this Agreement may be terminated by the Longstop Date:
8.1.1 the Buyer having received the Placement Agent by written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory notice to the BuyerCompany at any time prior to the Initial Closing if, in the Placement Agent's sole judgment, (i) andthe Company and/or Subsidiaries shall have sustained a loss that is material to the Company or its Subsidiaries, if any such conditions taken as a whole, whether or restrictions are imposednot insured, by reason of fire, earthquake, flood, accident or other calamity, or otherwise affect from any labor dispute or relate to the Seller court or government action, order or decree; (ii) trading in securities on any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring exchange or system shall have been completed suspended or limited either generally or specifically with respect to the Common Stock; (iii) material governmental restrictions have been imposed on trading in accordance securities generally or specifically with Error! Reference source respect to the Common Stock (not found. in force and effect on the date of this Agreement); (Restructuringiv) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) a banking moratorium shall have been fully performed declared by Federal or New York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Seller and/or Congress of the United States or any Group state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a material adverse effect on the business, financial condition or financial statements of the Company or the relevant Former Group Companymarket for the Series B Preferred Stock; (vii) the Common Stock shall have been delisted from NASDAQ and the Company has failed to use its best efforts to cause the Common Stock to be traded over the bulletin board; or (viii) there shall have been, as applicablein the Placement Agent's judgment, to a material decline in the reasonable satisfaction Dow ▇▇▇▇▇ Industrial Index or the market price of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior Common Stock at any time subsequent to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Agreement.
Appears in 1 contract
Sources: Series B Preferred Stock Placement Agreement (Effective Management Systems Inc)
Conditions. 8.1 Notwithstanding anything The obligation of the Underwriter hereunder shall be conditional upon the Underwriter receiving at the Closing Time:
(a) a favourable legal opinion of the Corporation’s counsel (addressed to the contrary Underwriter, the Subscribers and the Underwriter’s counsel), in form and substance satisfactory to the Underwriter, acting reasonably, relating to the offering, issuance and sale of the Flow-Through Shares (including, without limitation, the matters set forth in Schedule A) and as to all other legal matters, including compliance with Applicable Securities Laws of the Selling Jurisdictions, in any way connected with the offering, issuance, sale and delivery of the Flow-Through Shares as the Underwriter may reasonably request;
(b) a favourable legal opinion of the Corporation’s counsel (addressed to the Underwriter, the Subscribers and the Underwriter’s counsel), in form and substance satisfactory to the Underwriter, acting reasonably, relating to the title of the Corporation in the Black Fox Project;
(c) a favourable legal opinion of the Corporation’s U.S. counsel (addressed to the Underwriter, the Subscribers and the Underwriter’s counsel), in form and substance satisfactory to the Underwriter, acting reasonably, relating to compliance of the offer and sale of the Flow Through Shares with the exemptions from registration of the Offering under United States federal securities laws;
(d) a certificate of the Corporation dated the Closing Date, addressed to the Underwriter and the Subscribers and signed on the Corporation’s behalf by two senior officers of the Corporation satisfactory to the Underwriter, acting reasonably, certifying that:
(i) the Corporation has complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time, other than those which have been waived in writing by the Underwriter;
(ii) no event of a nature referred to in Section 12(a), (b) or (d) has occurred since the date of this Agreement or to the knowledge of such officers is pending, contemplated or threatened (excluding in the case of Sections 12(b) and (d) any requirement of the Underwriter to make a determination as to whether or not any event or change has, in the Underwriter’s opinion, had or could have the effect specified therein);
(iii) the Corporation has made and/or obtained, on or prior to the Closing Time, all necessary filings, approvals, consents and acceptances under Applicable Securities Laws, and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the execution and delivery of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the Subscription Agreements, the offering and sale of the Flow-Through Shares in the Selling Jurisdictions and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following conditions precedent the Closing Date);
(iv) there have been no material changes to the “Conditions”Due Diligence Session Responses; and
(v) such other matters as may be reasonably requested by the Longstop Date:Underwriter or the Underwriter’s counsel; and the Underwriter shall have no knowledge to the contrary; and
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably e) evidence satisfactory to the Buyer) Underwriter that the Corporation has obtained all necessary approvals of the Exchanges for the issuance of the Flow-Through Shares and the listing of the Flow-Through Shares, subject only to the filing of any documents and payment of applicable fees which may be required by the Exchanges. The foregoing conditions are for the sole benefit of the Underwriter and may be waived in whole or in part by the Underwriter at any time and, if any such conditions or restrictions are imposedwithout limitation, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer Underwriter shall have entered into the right, on behalf of potential subscribers, to withdraw all Transaction Documents Subscription Agreements delivered and not previously withdrawn or rescinded by such Transaction Documents remain in full force and effect, subject to persons. If any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source foregoing conditions are not found. (DD Follow-up Actions) shall have been fully performed by met, the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with Underwriter may terminate its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior without prejudice to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];remedies it may have.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything The obligation of any Agent, as agent of the Partnership, at any time ("Solicitation Time") to solicit offers to purchase the Securities, the obligation of any Agent to purchase Securities as principal pursuant to, any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the contrary condition that all representations and warranties of the Partnership and the Company herein and all statements of officers of the Partnership and the Company made in this Agreementany certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Securities, Completion is conditional upon satisfaction at and as of such Solicitation Time and (ii) in the case of any Agent's or waiver any other purchaser's obligation to purchase Securities, at and as of the time the Partnership accepts the offer to purchase such Securities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (in accordance with Clause 8.62) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, each of the Partnership and the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder, and (3) to the following additional conditions precedent (the “Conditions”) by the Longstop Datewhen and as specified:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject a) Prior to such conditions Solicitation Time or restrictions which are reasonably satisfactory to corresponding Time of Delivery or time of purchase, as the Buyercase may be:
(i) andthe Prospectus as amended or supplemented (including, if any applicable, the Pricing Supplement) with respect to such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring Securities shall have been completed in accordance filed with Error! Reference source not found. (Restructuringthe Commission pursuant to Rule 424(b) (under the “Restructuring Condition”);
8.1.4 each Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the actions set out Registration Statement shall be in Error! Reference source not found. (DD Follow-up Actions) effect and no proceeding for that purpose shall have been fully performed initiated or threatened by the Seller and/or any Group Company or Commission; and all requests for additional information on the relevant Former Group Company, as applicable, part of the Commission shall have been complied with to the reasonable satisfaction of the Buyersuch Agent;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following ii) there shall not have occurred prior to or as any downgrading, nor shall any notice have been given of the date of Completion: (aA) downgrading, (B) any claim having been made intended or potential downgrading or (C) any review or possible change that does not indicate maintaining or an improvement in the rating accorded any securities of or guaranteed by the Partnership by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];"nationally recognized statistical
Appears in 1 contract
Sources: Distribution Agreement (Summit Properties Partnership L P)
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 3.1 Completion is conditional upon satisfaction or waiver on:
(in accordance with Clause 8.6a) the approval by the general meeting of each shareholders of the following conditions precedent Seller of the transactions contemplated by this agreement;
(b) any competition authority referred to in the schedule headed “Competition Authorities” (the “Conditions”Competition Authorities):
(i) by taking a decision that the Longstop Date:
8.1.1 the Buyer having received the written approval sale of FAS in connection with the acquisition by the Buyer all or any of the Sale Shares or the Assets to the Purchaser does not give rise to a concentration falling within the scope of the relevant competition laws; or
(ii) taking a decision approving the sale of all or any of the Shares or the Assets to the Purchaser without imposing any conditions or restrictions obligations that are not on terms satisfactory to the Purchaser; or
(iii) not taking a decision to oppose or approve the transaction within the time limits as set by the relevant competition laws; and
(c) subject to clauses 4.2 and 4.4, the licences, authorisations, orders, grants, confirmations, permissions, registrations, consents and other approvals referred to in the schedule headed “Approvals” (each an Approval) having been obtained (either unconditionally or subject to the fulfilment of certain conditions and commitments which the relevant party (acting reasonably) considers acceptable) from the appropriate bodies and such Approvals remaining in full force and effect at Completion. The conditions or restrictions which referred to under paragraphs (a), (b) and (c) above are reasonably satisfactory collectively referred to as the BuyerConditions. Conditions 3.1(a) and, if any such conditions or restrictions and 3.1(b) are imposed, or otherwise affect or relate to for the Seller or any Seller Group Company, reasonably satisfactory to benefit of both parties and may not be waived without the Seller) (the “FAS Approval Condition”);
8.1.2 consent of both the Seller and the Buyer shall have entered into all Transaction Documents Purchaser. Condition 3.1(c) is for the benefit of the Purchaser and such Transaction Documents remain in full force and effectmay not, subject to any amendments thereto clause 4.2, be waived (in whole or in part) without the consent of the Purchaser.
3.2 With regard to Conditions 3.1(a) and 3.1(c), each party shall use its best efforts to procure that the Conditions are satisfied on or before the date falling two months after signing of this agreement. Furthermore:
(a) the Seller shall use all reasonable endeavours to obtain the approval of its ordinary shareholders as soon as reasonably practicable including, by convening a meeting of shareholders no later than six weeks after signing this agreement and the giving by the members of the Seller’s management and supervisory boards of positive recommendations to the shareholders to vote in favour of the resolution approving the transactions contemplated in this agreement, both Parties may agree at the time of convening the general meeting of the shareholders and at the meeting itself;
(b) the Purchaser shall, with respect to the Condition contained in clause 3.1(b) make, or procure the making of, all filings which it is obliged to make as soon as reasonably practicable after execution of this agreement and shall use reasonable efforts and take all reasonable steps to obtain:
(i) in respect of the EU the approval of the relevant Competition Authorities as soon as practicable within the first phase of the review by the Competition Authorities; and
(ii) in respect of the Czech Republic and Slovakia the approval of the relevant Competition Authorities as soon as practicable and within two months of signing of this agreement; and
(c) the parties shall use all reasonable endeavours to obtain the approvals referred to in writing;
8.1.3 the Restructuring schedule headed “Approvals” as soon as is reasonably practicable and the parties hereby agree that all related enquiries and requests from any government, governmental, supranational or trade agency, court, regulatory body or party or parties to the relevant agreements shall have been completed in accordance be dealt with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or and the Purchaser in consultation with each other and the Seller and the Purchaser shall promptly co-operate with and provide all necessary information and assistance reasonably required by such government, agency, court, body or party or parties to the relevant agreements upon being requested to do so by the other.
3.3 The Purchaser may voluntarily make one or more offers or commitments to the relevant Competition Authorities to remedy the concerns of such Competition Authorities, provided that such offers and commitments do not in any way affect the Seller’s Group Company or its business.
3.4 The Purchaser shall as soon as is reasonably practicable provide the Seller with copies of all material relevant correspondence, documents or other communications received from or sent to any Competition Authority relating to Condition 3.1(b). The Purchaser shall also as soon as is reasonably practicable inform the Seller of the content of any meeting or material conversation which takes place between any such Competition Authority and the Purchaser or any of its employees, directors, officers or advisers in relation to Condition 3.1(b) and shall, if requested by the Seller, provide a written summary thereof.
3.5 The Purchaser’s or any PMD Group Company’s compliance with any condition, obligation or other requirement imposed or contained in any decision by any relevant Competition Authority or the implementation of any offer made by the Purchaser to any relevant Former Group Company, as applicable, Competition Authority will not result in any change to the reasonable satisfaction terms and conditions (including the Purchase Price) of this agreement.
3.6 The Seller shall provide the Purchaser with any assistance reasonably requested by the Purchaser in relation to its filings with the Competition Authorities, including providing copies of all relevant previous market analyses and any other relevant data which the Seller may have, together with copies of all relevant filings made by the Seller to such Competition Authorities, and shall make such submissions to the Competition Authorities in favour of the Buyer;transactions contemplated by this agreement as reasonably requested by the Purchaser.
8.1.5 [***];
8.1.6 3.7 If any Condition contained in clause 3.1(b) or, if marked with a “à” in the schedule headed “Approvals”, clause 3.1(c), is not fulfilled or waived on or before the Long Stop Date, and provided that the Seller having complied has not prevented, frustrated or interfered with the fulfilment of any Condition, the Seller may resolve to terminate this agreement. If the Condition contained in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to clause 3.1(a) is not fulfilled or as of waived within four weeks after the date referred to in clause 3.2(a) or if a Condition contained in clause 3.1(c) and marked with an “à” is not fulfilled or waived on or before the Long Stop Date, and provided that the Purchaser has not prevented, frustrated or interfered with the fulfilment of Completion: any Condition, the Purchaser may resolve to terminate this agreement. Upon termination of this agreement pursuant to this clause:
(a) save as provided in clauses 3.7(b), 3.7(c) and 3.8 no party shall have any claim having been made by against any third other party asserting that as a result of such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; termination;
(b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that except for this clause, clause 3.8, the Transaction Documents or clauses headed “Confidentiality, Notices”, “Assignments”, “Payments”, “General”, “No Rescission”, “Whole Agreement”, “Governing Law”, “Arbitration” and “Language”, together with the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach provisions of the Seller Warranties by clause and schedule headed “Interpretation”, all the Seller having occurred, provided that for purposes other clauses of this Clause 8.1.9 “material breach” means a breach agreement shall lapse (or series of breachesvervallen) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were and cease to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];effect; and
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything to the contrary in this Agreement, 3.1 Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) the fulfilment of each of the following conditions precedent Conditions as follows:-
(a) the “Conditions”passing at the EGM (and not at any adjournment) of a resolution to approve the sale and purchase provided for herein on the terms set out in this agreement;
(b) all filings having been made and all or any applicable waiting and other time periods (including extensions thereto) under the US ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-trust Improvements Act of 1976 (as amended) and the rules and regulations promulgated thereunder (collectively, including such rules and regulations, the "HSR Act") in respect of the proposed acquisition of the US Shares;
(c) the earlier of:-
(i) a notification having been made under the Investment Canada Act (Canada) by RoweCom and confirmation being received that the Longstop Date:transaction is not reviewable; or
8.1.1 (ii) the Buyer having received expiry of 21 days from the written approval certified date referred to in paragraph 13(1)(a) of FAS in connection with the acquisition Investment Canada Act without receipt by RoweCom of a notice of review issued under the Investment Canada Act; or
(iii) the waiver of this Condition by RoweCom;
(d) ▇▇▇▇▇▇ obtaining or procuring:-
(i) the release of any guarantee, indemnity, security, bonding liability, surety, letter of comfort or other similar contingent liability or commitment given or entered into prior to Completion by the Buyer Company or the Subsidiaries in relation to obligations or liabilities of any member of the Sale Shares without ▇▇▇▇▇▇ Group (past or present) other than those otherwise agreed in writing by RoweCom prior to Completion;
(ii) the satisfaction or repayment of any conditions debts, liabilities or restrictions other obligations by way of borrowing (including Intra-Group Indebtedness) of the Company or subject to such conditions or restrictions which are reasonably satisfactory any Subsidiary other than to the Buyerextent to which they are agreed to be provided for in the Completion Accounts or are provided for in schedule 16; and
(iii) andthe release, if satisfaction or removal of any such conditions or restrictions are imposed, or otherwise affect or relate to and all Encumbrances on any of the Seller or shares in any Seller Group Company, reasonably satisfactory to Asset Businesses or Assets or the Seller) (the “FAS Approval Condition”)assets of any Group Company other than any Permitted Encumbrances;
8.1.2 (e) the Seller and delivery by ▇▇▇▇▇▇ to RoweCom immediately prior to Completion of a letter signed (without personal liability) by a director of ▇▇▇▇▇▇ (on behalf of ▇▇▇▇▇▇) in the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions form set out in Error! Reference source not found. (DD Follow-up Actions) schedule 13.
3.2 Both parties hereto shall have been fully performed by use all reasonable endeavours to ensure that all appropriate authorisations, orders, grants, consents, clearances, licences, permissions and approvals are obtained and filings made for the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];clauses 3.1
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Subscription Business (Rowecom Inc)
Conditions. 8.1 (a) Notwithstanding anything in this Agreement to the contrary, Buyer's obligation to purchase the Property shall be subject to and contingent upon the satisfaction or waiver by Buyer of the following conditions precedent:
(i) Buyer's inspection and approval, within the Inspection Period, of all environmental, legal and title matters relating to the Property, pursuant to Sections 2.3 and 2.4 above.
(ii) Notwithstanding anything to the contrary contained in this Agreement, Completion the willingness of Title Company, or some other reputable title insurer of comparable size and reputation and with a rate schedule comparable to that of Title Company and approved by Buyer in Buyer's reasonable discretion (provided, however, that Buyer hereby approves Commonwealth Land Title Insurance Company), to issue its standard owner's form policy of title insurance ("Buyer's Title Policy"), insuring Buyer in the amount of the Purchase Price that title to the Real Property is conditional vested of record in Buyer, in accordance with the terms and provisions of this Agreement, on the Closing Date, subject only to the printed conditions and exceptions of such policy, the Exceptions and the lien(s) of any financing that Buyer may obtain.
(iii) Buyer's determination, on or before the Closing Date, that Buyer will be able to obtain financing reasonably acceptable to Buyer, in an amount not to exceed the Purchase Price, with respect to Buyer's purchase of the Property.
(b) Notwithstanding anything in this Agreement to the contrary, Seller's obligation to sell the Property shall be subject to and contingent upon the satisfaction or waiver (in accordance with Clause 8.6) of each by Seller of the following conditions precedent (the “Conditions”) by the Longstop Dateprecedent:
8.1.1 the Buyer having received the written approval (i) The willingness of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject Title Company to such conditions or restrictions which are reasonably satisfactory to issue the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed 's Title Policy in accordance with Error! Reference source not found. the terms and provisions of this Agreement, except to the extent such unwillingness results from a Seller Exception.
(Restructuringii) (the “Restructuring Condition”);
8.1.4 each Buyer's timely satisfaction or waiver of the actions conditions set out forth in Error! Reference source not found. Section 3.1(a) above.
(DD Follow-up Actionsiii) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, Prior to the reasonable satisfaction expiration of the Buyer;
8.1.5 [***];
8.1.6 Inspection Period, the Seller having complied deposit in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none escrow of the following shall have occurred prior Deposit in accordance with Article 6 below.
(iv) On or before the Closing Date, Buyer's delivery to or as Title Company of the date of Completion: items set forth in Section 5.1(a) below.
(av) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights The absence of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties Lease by Buyer during the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which period prior to the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Neose Technologies Inc)
Conditions. 8.1 Notwithstanding anything The obligation of any Agent, as agent of the Company, at any time to solicit offers to purchase the Securities ("Solicitation Time"), the obligation of any Agent to purchase Securities as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each condition that all representations and warranties of the Company herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Securities, at and as of such Solicitation Time and (ii) in the case of any Agent's or any other purchaser's obligation to purchase Securities, at and as of the time the Company accepts the offer to purchase such Securities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (3) to the following additional conditions precedent (the “Conditions”) by the Longstop Datewhen and as specified:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject a) Prior to such conditions Solicitation Time or restrictions which are reasonably satisfactory to corresponding Time of Delivery or time of purchase, as the Buyercase may be:
(i) andthe Prospectus, as amended or supplemented (including, if any applicable, the Pricing Supplement), with respect to such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring Securities shall have been completed in accordance filed with Error! Reference source not found. (Restructuringthe Commission pursuant to Rule 424(b) (under the “Restructuring Condition”);
8.1.4 each Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the actions set out Registration Statement shall be in Error! Reference source not found. (DD Follow-up Actions) effect and no proceeding for that purpose shall have been fully performed initiated or threatened by the Seller and/or any Group Company or Commission; and all requests for additional information on the relevant Former Group Company, as applicable, part of the Commission shall have been complied with to the reasonable satisfaction of the Buyersuch Agent;
8.1.5 [***](ii) since the date of any Terms Agreement or the acceptance by the Company of any offer to purchase Notes, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act;
8.1.6 (iii) since the Seller having complied date of any Terms Agreement or the acceptance by the Company of any offer to purchase Notes, as the case may be, there shall not have been any material adverse change or any development involving a prospective material adverse change, in all or affecting the condition (financial or otherwise), earnings, prospects or results of operations or business of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, as amended or supplemented to such Solicitation Time or at the time such offer to purchase was made, the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, as so amended or supplemented; and
(iv) (A) since the date of any Terms Agreement or the acceptance by the Company of any offer to purchase Notes, as the case may be, trading generally shall not have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) trading of any securities of or guaranteed by the Company shall not have been suspended on any exchange or in any over-the-counter market, (C) a general moratorium on commercial banking activities in New York shall not have been declared by either federal or New York State authorities or (D) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or emergency that, in the judgment of such Agent or Agents or of such other purchaser, is material respects with its covenantsand adverse and which in the judgment of such Agent or Agents or other purchasers makes it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, obligations as amended or supplemented at the Solicitation Time, or at the time such offer to purchase was made.
(i) On the Commencement Date, and undertakings under in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, Good▇▇▇, ▇▇octer & Hoar or other counsel for the Company shall have furnished to the relevant Agent or Agents their written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that:
(A) this Agreement set out in Clause 9 (Conduct and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company, and are valid and binding agreements of Business before Completion; Information Rights)the Company;
8.1.7 no Material Adverse Change having occurred(B) the Securities have been duly authorized and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by any purchaser of Securities sold through an Agent as agent or an Agent as principal pursuant to any Terms Agreement or other agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
8.1.8 none (C) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument of the following Company; and the Indenture has been duly qualified under the Trust Indenture Act;
(D) the execution, delivery and performance of the Indenture, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Securities as principal and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (A) the charter or by-laws of the Company or any subsidiary; (B) any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any material lease, contract or other agreement or instrument to which the Company or any subsidiary is a party or by which the Company or any such subsidiary may be bound filed by the Company under the Securities Act or the Exchange Act; (C) any law or rule or regulation of any governmental agency or body having jurisdiction over the Company or any subsidiary or over the properties of the Company or any such subsidiary; or (D) to the knowledge of such counsel, any order of any court having jurisdiction over the Company or any subsidiary or over the properties of the Company or any such subsidiary; and
(E) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Securities or the consummation of the other transactions contemplated by this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Securities as principal, or the Indenture, except such consents, approvals, authorizations, registrations or qualifications as have been obtained under the Securities Act and the Trust Indenture Act and as may be required under state securities or Blue Sky laws in connection with offers and sales of the Securities from the Company and with purchases of Securities. In addition, such counsel shall have occurred prior state that (1) such counsel has no reason to believe that such registration statement, as of its effective date, the Registration Statement or the Prospectus, as of the date of Completion: the Terms Agreement, or any such amendment or supplement, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (a2) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (3) such counsel does not know of any claim having been made by legal or governmental proceedings required to be described in the Prospectus which are not described as required or of any third party asserting contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such person is entitled counsel need express no opinion as to all the financial statements or any part of or interest other financial data contained in the Sale SharesRegistration Statement or the Prospectus. In rendering such opinion, and/or such counsel may rely as to the Subsidiary Equity Interestsmateriality of agreements and other factual matters on one or more written certificates of officers of the Company or public officials as and to the extent they deem such reliance appropriate. In rendering such opinions, and/or such counsel may rely (1) as to matters involving the Purchase Priceapplication of the laws other than the laws of the United States and the Commonwealth of Massachusetts to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Agents' counsel) of other counsel reasonably acceptable to the Agents' counsel, familiar with the applicable laws; and (b2) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinion of such counsel for the Company shall state that the opinion of any claim having been made by such other counsel is in form satisfactory to such counsel and, in such counsel's opinion, the Agents and they are justified in relying thereon. With respect to the matters to be covered in subparagraphs (b)(i)(G) and (b)(i)(I) above, counsel may state their opinion and belief is based upon their participation in the preparation of the Registration Statement and the Prospectus and any person amendment or supplement thereto (other than the documents incorporated by reference therein) and review and discussion of the contents thereof (including the documents incorporated by reference therein) but is without independent check or verification, except as specified.
(ii) On the Commencement Date, and in the case of a Seller Related Entity purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, Paul ▇. ▇▇▇▇▇▇, ▇▇nior Vice President and General Counsel of the Company, shall have furnished to the relevant Agent or Agents their written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that:
(A) The Company and each of its subsidiaries have been duly incorporated, are validly existing and are in good standing under the laws of their respective jurisdictions of incorporation, with corporate power and authority to own their properties and conduct their business as described in the Prospectus; and
(B) The Company and each of its subsidiaries are duly qualified to do business as foreign corporations in good standing in all other jurisdictions in which they own or lease substantial properties or in which the conduct of their business requires such qualification, except where the failure to so qualify would not have a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or Material Adverse Effect.
(c) any injunctionOn the Commencement Date, judgmentand in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, orderif called for by the applicable Terms Agreement or other agreement, decree at the corresponding Time of Delivery, Skadden, Arps, Slate, Meag▇▇▇ & ▇lom, ▇▇unsel to the Agents, shall have furnished to the relevant Agent or ruling Agents such opinion or opinions, dated the Commencement Date or Time of any Governmental Authority shall having been issued that
8.1.9 no material breach Delivery, as the case may be, with respect to the validity of the Seller Warranties Indenture, the Securities, the Registration Statement, the Prospectus as amended or supplemented and other related matters as such Agent or Agents may reasonably request, and in each case such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(d) On the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the Seller having occurredapplicable Terms Agreement or other agreement, provided that for purposes at the corresponding Time of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which Delivery, Ernst & Young, the aggregate liability Company's independent certified public accountants, who have certified the financial statements of the SellerCompany and its subsidiaries included or incorporated by reference in the Registration Statement and Prospectus, as then amended or supplemented, shall have furnished to the relevant Agent or Agents a letter, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information relating to the Company contained in or incorporated by reference in the Registration Statement and the Prospectus, as then amended or supplemented.
(e) On the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the Buyer were applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the relevant Agent or Agents shall have received a certificate or certificates signed by the President or any Vice-President and a principal financial or accounting officer of the Company, dated the Commencement Date or Time of Delivery, as the case may be, to bring the effect set forth in Section 6(a)(i) and (ii) above and to the further effect that (1) the representations and warranties of the Company contained herein are true and correct on and as of the Commencement Date or Time of Delivery, as the case may be, as if made on and as of such date, (2) the Company has complied with all agreements and all conditions on its part to be performed or satisfied hereunder or under the applicable Terms Agreement or other agreement at or prior to the Commencement Date or Time of Delivery, as the case may be, and (3) there has not occurred any material adverse change, or any development involving a Claim(s) prospective material adverse change, in or affecting the condition (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)financial or otherwise), could earnings, prospects or results of operations or business of the Company and its subsidiaries taken as a whole from that set forth in or contemplated by the Registration Statement or the Prospectus.
(f) On the Commencement Date and at each Time of Delivery, the Company shall have furnished to the relevant Agent or Agents such further certificates, information and documents as such Agent or Agents may reasonably be expected to exceed [***];request.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything The effectiveness of this Amendment is subject to the contrary in this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each of the following conditions precedent precedent:
(a) the “Conditions”execution and delivery of this Amendment by Borrowers, Agent and the Required Lenders;
(b) the representations and warranties in Section 4 hereof being true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties are true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
(c) no Default or Event of Default has occurred or is continuing (or would result after giving effect to the transactions contemplated by this Amendment);
(d) the receipt in cash by the Lender Group of the payment of all fees, costs and expenses incurred thereby on or prior to the date of this Amendment that are required to be reimbursed pursuant to Section 2.05(d) and Section 2.09 of the Credit Agreement or Section 6 of this Amendment and all other fees, costs and expenses incurred in connection with this Amendment (and the transactions contemplated hereby) by the Longstop Date:
8.1.1 Lender Group (including, in each case, all Lender Group Expenses and all attorneys’ fees of the Buyer having received Lender Group and any estimates of post-closing fees, costs and expenses (including all attorneys’ fees) expected to be incurred by the written approval of FAS Lender Group in connection with this Amendment);
(e) the acquisition receipt by the Buyer Agent and the Lenders of a fully executed copy of a corresponding amendment to the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are Term Credit Agreement in form and substance reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to Agent and the Seller or any Seller Group Company, reasonably satisfactory to the Seller) Lenders (the “FAS Approval ConditionTerm Amendment”);; and
8.1.2 (f) the Seller receipt by the Agent and the Buyer shall have entered into Lenders of all Transaction Documents other documents, agreements, instruments and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed other information requested by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations and undertakings under this Agreement set out in Clause 9 (Conduct of Business before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none of the following shall have occurred prior to or as of the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all Agent or any part of or interest in the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];Lender.
Appears in 1 contract
Conditions. 8.1 Notwithstanding anything (a) Conditions Precedent to the contrary in this Agreement, Completion Obligation of the Company to Sell the Tranche C Units. The obligation of the Company to sell the Tranche C Units hereunder is conditional upon subject to the satisfaction or waiver (in accordance with Clause 8.6prior written notice to each Purchaser) by the Company, at or before the Tranche C Closing, of each of the following conditions precedent conditions:
(i) Accuracy of the “Conditions”Purchasers' Representations and Warranties. The representations and warranties of each Purchaser in this Agreement shall be true and correct in all material respects as of the date when made and as of the Tranche C Closing Date;
(ii) Performance by the Longstop Date:
8.1.1 the Buyer having received the written approval of FAS in connection with the acquisition by the Buyer of the Sale Shares without any conditions or restrictions (or subject to such conditions or restrictions which are reasonably satisfactory to the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”);
8.1.2 the Seller and the Buyer Purchasers. Each Purchaser shall have entered into all Transaction Documents performed, satisfied and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its all covenants, obligations agreements and undertakings under conditions required by this Agreement set out in Clause 9 to be performed, satisfied or complied with by such Purchaser at or prior to the Tranche C Closing; and
(Conduct iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of Business competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents.
(b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Tranche C Units. The obligation of each Purchaser hereunder to acquire and pay for the Tranche C Units is subject to the satisfaction or waiver by such Purchaser, at or before Completion; Information Rights);
8.1.7 no Material Adverse Change having occurred;
8.1.8 none the Tranche C Closing, of each of the following conditions:
(i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in the Registration Rights Agreement shall have occurred prior to or be true and correct in all respects as of the date when made and as of Completion: the Tranche C Closing Date;
(aii) any claim having Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche C Closing;
(iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been made enacted, entered, promulgated or endorsed by any third party asserting that such person is entitled to all court or any part governmental authority of or interest in competent jurisdiction which prohibits the Sale Shares, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights consummation of any person; or (c) any injunction, judgment, order, decree or ruling of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties transactions contemplated by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***]Transaction Documents;
(iv) No Suspensions of Trading in Common Stock. The trading in the Common Stock shall not have been suspended by the Commission or on Nasdaq which suspension shall remain in effect;
Appears in 1 contract
Sources: Securities Purchase Agreement (Digital Courier Technologies Inc)
Conditions. 8.1 Notwithstanding anything 3.1 Completion is conditional upon:
(a) the Purchaser having completed its due diligence (including but not limited to legal, financial and commercial aspects) in respect of the Company and the results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the contrary Purchaser in all respects;
(b) if so required, passing of necessary resolutions by the Company’s board of directors and shareholders approving this Agreement and the transactions contemplated herein;
(c) all necessary consents, permits and approvals (whether governmental, regulatory or otherwise) as may be required under U.S. securities laws or other relevant laws, regulations and rules in the U.S. in respect of this Agreement, Completion is conditional upon satisfaction or waiver (in accordance with Clause 8.6) of each the allotment and issue of the following conditions precedent (Consideration Shares and the “Conditions”) transactions contemplated hereunder having been obtained by the Longstop DatePurchaser;
(d) the Purchaser having obtained a legal opinion issued by a U.S. legal counsel (which form and contents are satisfactory and acceptable to the Purchaser at its absolute discretion) in respect of:
8.1.1 (i) the Buyer having received legality and validity of this Agreement, allotment and issue of Consideration Shares and the written approval transactions contemplated herein;
(ii) the completion of FAS in connection with all necessary procedures and obtaining of all necessary approvals regarding the acquisition by the Buyer of the Sale Shares without any conditions or restrictions Interests; and,
(or subject to such conditions or restrictions which are iii) all other matters reasonably satisfactory to requested by the Buyer) and, if any such conditions or restrictions are imposed, or otherwise affect or relate to the Seller or any Seller Group Company, reasonably satisfactory to the Seller) (the “FAS Approval Condition”)Purchaser;
8.1.2 (e) the Seller and the Buyer shall have entered into all Transaction Documents and such Transaction Documents remain in full force and effect, subject to any amendments thereto both Parties may agree to in writing;
8.1.3 the Restructuring shall have been completed in accordance with Error! Reference source not found. (Restructuring) (the “Restructuring Condition”);
8.1.4 each of the actions set out in Error! Reference source not found. (DD Follow-up Actions) shall have been fully performed by the Seller and/or any Group Company or the relevant Former Group Company, as applicable, to the reasonable satisfaction of the Buyer;
8.1.5 [***];
8.1.6 the Seller having complied in all material respects with its covenants, obligations Warranties and undertakings under this Agreement are true and accurate and are not misleading in any material aspects at Completion as if repeated at Completion and at all times between the date of this Agreement and the Completion;
(f) the entire share capital of Shanghai Jinou Travel Production Limited (上海錦歐旅業策劃有限公司) is held by and registered to the Company. Particulars of the Company is included in Appendix III.
3.2 In connection to Clause 3.1 (a), the Vendors shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approval, correspondence and accounts of the Company and the Vendors and all such information relating to both the Company and the Vendors as may be reasonably requested by or on behalf of the Purchaser to undertake and conduct a full due diligence (including but not limited to, in all legal, financial and commercial aspects) against them and be permitted to take copies of any such books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company and the Vendors shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendors.
3.3 The Purchaser may at any time by notice in writing to the Vendors waive any of the Conditions set out in Clause 9 3.1. If (Conduct a) any of Business the conditions set out in Clause 3.1 has not been satisfied (or as the case may be, waived by the Purchaser) or before 5:00 p.m. on the Completion Date or such later date as the Purchaser may agree; or (b) the Purchaser is not satisfied with the results of the due diligence conducted according to Clause 3.2 and informs the Vendors in writing at any time, this Agreement shall cease and determine and the parties to this Agreement shall not have any obligations and liabilities.
3.4 The Vendors and the Company undertake to disclose in writing to the Purchaser anything which will or may prevent any of the conditions from being satisfied at or prior to Completion; Information Rights, as applicable, immediately upon the Vendors or the Company becoming aware of such a situation.
3.5 From the date of this Agreement until Completion, except otherwise with the prior consent of the Purchaser:
(a) The Vendors warrant and undertake that they will cause the Company to: - conduct its business in the ordinary course and consistent with best practices, - use its best efforts to maintain in full force and effect of the Company, - promptly and timely pay all taxes, if so required, - keep records in which true and correct entries will be made of all material transactions by and with each of the Vendors and the Company, - duly observe all material requirements of governmental authorities unless contested in good faith by appropriate proceedings with the consent of the Purchaser, - promptly pay and discharge when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income and profits upon the Company unless contested in good faith by appropriate proceedings with the consent of the Purchaser, - at all times comply with the provisions of all contracts to which the Company or the Vendor is a party,
(b) Each of the Vendors warrants and undertakes to cause the Company not to: - modify any clauses of its Memorandum and Articles of Association, - cause or permit its liquidation or dissolution, - make a general assignment for the benefit of any third parties, - declare or pay any dividend or make any distribution to its shareholders(s);, - issue, redeem, sell or dispose of, or create any obligation to issue, redeem, sell or dispose of, any shares of its capital stock, - effect any stock split, reclassification or combination, - modify its agreements and other obligations with respect to, but not limited to, its hotel management contracts and any other notes and security agreements.
8.1.7 3.6 Until completion, the Vendors and the Company shall procure that the Purchaser, its agents and representatives are given reasonable access to such documents relating to the Company, as the Purchaser may request. The Vendors shall assist the auditors appointed by the Purchaser to complete the report of the Company in accordance with the US GAAP.
3.7 The Vendors warrant, represent and undertake that there shall have been no Material Adverse Change having occurred;
8.1.8 none in the assets or the business, prospects, financial conditions and results of operations of the following shall have occurred Company.
3.8 The Purchaser may rescind this Agreement by notice in writing to the Vendors and the Company if prior to Completion it appears that any of the Warranties is not or as of was not true and accurate in any respects or if any act or event occurs which, had it occurred on or before the date of Completion: (a) any claim having been made by any third party asserting that such person is entitled to all or any part of or interest in the Sale Sharesthis Agreement, and/or the Subsidiary Equity Interests, and/or the Purchase Price; (b) any claim having been made by any person (other than would have constituted a Seller Related Entity or a Buyer Related Person) asserting that the Transaction Documents or the Transactions contemplated hereby are illegal or invalid or violate the rights breach of any person; of the Warranties or (c) if there is any injunction, judgment, order, decree or ruling material non fulfillment of any Governmental Authority shall having been issued that
8.1.9 no material breach of the Seller Warranties by the Seller having occurred, provided that for purposes of this Clause 8.1.9 “material breach” means a breach (or series of breaches) of any Seller Warranties for which the aggregate liability of the Seller, if the Buyer were is not remedied prior to bring a Claim(s) (assuming for these purposes that the Buyer did not have any right of termination under this Agreement and Completion was effected notwithstanding the breach(es)), could reasonably be expected to exceed [***];completion.
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