Purchase Price. The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Equipment Purchase Agreement (Cyber Defense Systems Inc)

Purchase Price. ~~The~~ Purchaser ~~shall pay to~~ has audited the books and financial records of Seller an through February 28, 1998, and, based on such audit, Purchaser has determined the amount ~~equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number~~ of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, initial consideration to be paid to the Seller ~~within five (5) days~~ in payment and consideration for the sale and transfer of the ~~Closing Date~~Assets by Seller to Purchaser. Upon the terms and subject to the conditions set forth herein, Purchaser shall assume and thereafter perform the Assumed Liabilities of Seller set forth in Section 1.3(b) hereof and Purchaser shall pay to Seller as consideration (the "Initial Consideration") the amounts set forth below. The ~~Purchaser may substitute five hundred ten thousand dollars~~ Initial Consideration shall be paid as follows: (i) On the Closing Date the Seller shall receive $~~510,000)~~ 5,528,715.00 in ~~market value, as of the date of the closing~~cash, of ~~any registered shares~~which $1,200,000 shall be deposited into the Working Capital Account (the "Cash Portion"), to be paid by certified or ~~shares exempt from registration,~~ bank cashier's check or by wire transfer of ~~another corporation acceptable~~ immediately available funds to an account designated by Seller and the ~~Seller in lieu of the mergee's closing shares.~~Working Capital Account; ~~D. In the event that the Purchaser, for any reason, shall fail, within seventy-two~~ (72ii) ~~days subsequent to~~ On the Closing Date, Purchaser shall issue and deliver to ~~arrange for~~ Seller an unsecured, subordinated, convertible promissory note in the amount of $1,488,500 (the "Convertible Note"), substantially in the form attached hereto as Annex VI. The Convertible Note shall be interest free and shall be payable in full on the Maturity Date if not converted. During the term of the Convertible Note, the principal amount of the Convertible Note shall be convertible, at Seller's option, into common stock, par value $ .01 per share, of Purchaser (the "Common Stock"), which shares ~~described~~ shall be valued at the time of conversion, if any, at the fair market value determined in ~~1.02~~ accordance with Purchaser's common practices, or, if Purchaser has consummated an initial public offering (~~C) above~~"IPO"), ~~that are free~~ the price of Purchaser's Common Stock shares as traded on the public markets (the "Fair Market Value"). If Seller exercises its conversion rights hereunder, then Seller shall, prior to the issuance by Purchaser of any ~~restrictions as~~ Common Stock pursuant to ~~their transferability or marketability~~ this subparagraph, return the Convertible Note to Purchaser for cancellation and execute a Joinder Agreement substantially in the ~~open market, to be paid~~ form attached hereto as Annex IV binding it and all its shares of Purchaser Stock to the provisions of the Stockholders' Agreements of Purchaser dated May 29, 1997, as amended form time to time (the "Stockholders' Agreement"). Upon conversion of the Convertible Note, Seller by shall have waived any preemptive rights accorded to Stockholders (as such term is defined in the ~~fifth~~ Stockholders' Agreement) under the Stockholders' Agreement; (~~5th~~ iii) ~~day subsequent to~~ On the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue ~~cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms~~ and ~~conditions as described~~ deliver to Seller an unsecured, subordinated promissory note in the ~~Money Purchase Contract~~ aggregate principal amount of $1,488,500 (the "~~MPC~~First Note")) substantially in the form attached hereto as Annex V. (iv) On the Closing Date, ~~attached herein as Exhibit B of this Agreement. F. The~~ Purchaser shall ~~issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds~~ assume the Assumed Liabilities as ~~described~~ defined herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.and

Appears in 1 contract

Sources: Asset Purchase Agreement (It Partners Inc)

Purchase Price. The ~~Purchaser~~ total purchase price to be paid by Buyer for the Intellectual Property to be sold pursuant to this Agreement shall ~~pay~~ be One Million, Thirty Thousand Dollars ($1,030,000) (herein referred to as the “Purchase Price”). Said Purchase Price shall be paid by Buyer as follows: (a) the sum of Three Hundred Thousand Dollars ($300,000) payable in immediately available funds at Closing; (b) the sum of Five Thousand Dollars ($5,000) per month commencing January 1, 2010 and continuing on the first (1st) day of each month thereafter until and including August 1, 2011 (total consideration paid under this provision being the sum of One Hundred Thousand Dollars ($100,000)) plus interest at the annual rate of 3%, as evidenced by a secured promissory note in the form attached hereto as Exhibit “B” (herein referred to as the “Note”), and payment of such Note shall be secured by a retained security interest in favor of the Seller an as set forth in the Note; (c) a monthly amount equal to ~~three million two hundred sixty thousand dollars~~ five percent (5%) of the gross revenue received by Buyer, any affiliate of Buyer, or any licensee, transferee or assignee of the Intellectual Property in the ordinary course of business, from any sale, license or other disposition of any Intellectual Property or from any sale, license or other disposition of any product or device that embodies any of the Intellectual Property (each such sale, license or disposition herein called a “Sale”). Such monthly payments shall be made on or before the fifteenth (15th) day following the end of each month commencing with the date of first receipt of revenues from a Sale, and shall continue on the fifteenth (15th) day of each month thereafter until the remaining balance of the Purchase Price (the sum of Six Hundred Thirty Thousand Dollars ($~~3,260,000~~630,000)) is paid in ~~the following manner: A. The number of common shares~~ full. Each payment shall be accompanied by a report of the ~~Purchaser~~amount of revenue received by Buyer from each Sale during the previous month, ~~convertible into common shares~~ and the name and address of ~~a reporting corporation in a current status with its SEC filing requirements~~ each payor, during such monthly period. Buyer shall maintain accurate books and ~~currently quoted on~~ records of any Sale transactions involving the ~~OTCBB (~~Intellectual Property. Upon reasonable notice to Buyer, the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall ~~be duly~~ have the right to inspect the books and ~~validly issued~~ records of Buyer related to revenues received by ~~Purchaser~~ Buyer from any and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) all Sale transactions. In the event ~~that the common stock~~ such inspection reveals an underpayment of more than 5% of the ~~issuer is quoted on~~ amount owed in any month, then Buyer shall pay the ~~Pink Sheets~~105% of such underpayment amount and all of Seller’s reasonable costs of conducting such inspection. In the event of a Sale by Buyer or an affiliate of Buyer of all or substantially all of the Intellectual Property in one or a series of related or unrelated bona fide transactions for fair value, to an unrelated third party reasonably acceptable to Seller, the Buyer shall require such unrelated third party purchaser to assume all of the rights, duties and ~~is not quoted on the OTCBB~~obligations of Buyer under this Agreement, with Buyer being fully relieved of any duties and obligations hereunder; and (d) Buyer shall defend, indemnify and hold Seller harmless from and against any and all liability and responsibility whatsoever with respect to all Sales, including claims or actions for product liability, product warranty, injury to person or property, or any other ~~regional~~ claim, cause of action or ~~national stock exchange, on the date of the effectiveness of the first registration of~~ liability arising from or in connection with any ~~of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at~~ Sale. If any ~~time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock~~ claim shall be ~~issued~~ made or threatened against Seller by any third party, Seller shall notify Buyer and ~~delivered by Purchaser or~~ Buyer shall have the ~~issuer~~right to defend such claim with counsel of its own choice, ~~as applicable,~~ provided such counsel is reasonably satisfactory to Seller. If Buyer does not assume the ~~Seller immediately following~~ defense of such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars claim within fifteen ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (515) days ~~of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt~~ after notice from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then ~~the~~ Seller may defend such claim with counsel of its choosing, and Buyer shall be ~~entitled to a UCC-1 lien on the general~~ responsible for all judgments, awards, costs of defense (including attorneys and ~~total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000~~expert witness fees) ~~dollars, is paid to the~~ incurred by Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and ~~a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above~~shall reimburse Seller promptly upon demand. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Sale and Purchase Agreement (Mimedx Group, Inc.)

Purchase Price. The ~~Purchaser~~ aggregate purchase price for the Purchased Assets shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be US$6,253,116 (~~$3,260,000~~Six Million Two Hundred Fifty Three Thousand One Hundred Sixteen U.S. dollars) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price"), ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (~~plus the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price assumption of the ~~issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share,~~ Assumed Liabilities. Buyers and Seller hereby acknowledge that a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the US$3,849,298 (Three Million Eight Hundred Forty Nine Thousand Two Hundred Ninety Eight U.S. dollars) has been paid by Buyer to Seller ~~shall be applicable~~ prior to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement.. Buyer shall pay the remaining amount of the Purchase Price by wire transfer to Sellers of immediately available funds in accordance with the wire transfer instructions provided by EMCORE to Buyer in the following amounts on the following dates: ~~L. The~~ (a) US$1,119,279 shall be paid prior to the DMTX Remaining Closing Date; and (b) US$1,284,539 shall be paid prior to the LM Remaining Closing Date. In addition to all other rights and remedies available to Sellers in connection with any breach of the foregoing obligations, (i) interest shall accrue at a rate of 0.02% per day for all amounts unpaid when due, provided that such interest shall not exceed 5% of all amounts unpaid when due, (ii) Seller shall have the right, in its sole discretion, to provide 30 days advance written notice that it require immediate transfer to Seller at Buyer’s sole cost and expense of any or all of the Purchased Assets for which payment is then due and owing, provided that if Buyer cure such breach within such 30 day notice period, then no such transfer shall be required. If the above transfer is implemented by the Seller, ~~at its sole option and discretion, may require~~ the ~~Purchaser~~ Seller shall refund any payments which Seller has received from the Buyer corresponding the returned Purchased Assets within 30 days following the date such Purchased Assets are returned to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were basedSeller’s designated location.

Appears in 1 contract

Sources: Asset Purchase Agreement (Emcore Corp)

Purchase Price. The ~~Purchaser shall pay to~~ purchase price for the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ LLC Interest is Forty Million Five Hundred Thousand and no/100 Dollars ($~~3,260,000~~40,500,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price"~~), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in ~~sub-paragraph 1.02 (F)~~this Agreement. At Closing, ~~then~~ the ~~three hundred thousand dollars~~ LLC shall deliver to Seller the sum of Thirty Million Five Hundred Thousand and no/100 Dollars ($~~300,000~~30,500,000.00) ~~payment due~~ (plus or minus the prorations and adjustments referenced in this Agreement) in cash or certified funds; provided, that (A) $250,000 of said amount may be withheld by the LLC's lender until Seller delivers a non-disturbance agreement from lessor of the Beauvoir Lease, and (B) $400,000 of said amount may be withheld by the LLC for the repairs, modifications or improvements to the ~~Seller shall emanate from~~ hotel and restaurant portions of the ~~next subsequent sale of such manufactured equipment~~ Property identified by the ~~Purchaser to its contract purchaser(s)~~City of Biloxi officials during the inspection of the Property on April 23, ~~at its next delivery of such equipment,~~ 1997 and ~~a penalty of twenty~~any subsequent follow-~~five thousand ($25,000) dollars shall be added~~ up inspections on or prior to the ~~MPC, attached herein as Exhibit B of this Agreement, at~~ Closing Date for the ~~time~~ purpose of the ~~first deliveries of contract equipment purchased by~~ LLC obtaining new permits for the ~~contract purchaser that did not include the piece(s) titled~~ Property. The LLC shall promptly deliver to ~~the Seller. H. In the event that the payment~~ Seller any amount withheld less any sums expended to ~~the Seller can~~perform such repairs, modifications and improvements if all work contemplated has been completed and excess funds remain. The LLC shall use its best efforts (which shall not be ~~made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due~~ deemed to ~~the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as~~ include the payment of money) to help Seller to obtain such non-disturbance agreement. Seller shall use $2,000,000 of said amount to pay off those two certain promissory notes dated February 15, 1996 made by Seller to PRC Management, Inc., each in the principal amount of $~~300,000 payment, plus a penalty~~ 1,000,000 (the "PRC Notes"). The balance of ~~fifty thousand~~ the Purchase Price (being the sum of Ten Million and no/100 Dollars ($~~50,000~~10,000,000.00) ~~dollars, is paid~~ shall be in the form of a member interest in the LLC in accordance with the terms of Section 3(a)(vi) of this Agreement (the "Seller Interest"). In addition to the cash portion of the Purchase Price as described above, the LLC shall assume, pay and discharge when due Seller~~. I. In~~ 's obligations occurring after the ~~event that the Equipment sold by the Seller~~ Closing with respect to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal contracts relating to the ~~pro-rata number of additional shares based~~ Property that are listed on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS Schedule 5(e) (~~hereafter,~~ the "~~Parent~~Assumed Contracts")~~, upon the execution and effectiveness of OAS's merger with the mergee, or such Parent~~. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Redemption Agreement (President Casinos Inc)

Purchase Price. ~~The~~ Subject to the terms of this Agreement, as full consideration for the sale, assignment, transfer and delivery of the Purchased Interests and the execution and delivery of the agreements referenced herein, the Purchaser shall ~~pay~~ deliver to Principal the ~~Seller~~ following aggregate consideration of (the “Purchase Price”): (a) TWELVE MILLION, ONE HUNDRED THIRTY-TWO THOUSAND, THREE HUNDRED AND FIFTY-SIX DOLLARS ($12,132,356) (the “Unadjusted Closing Cash Amount”), less an amount equal to the accrued employee bonus compensation payable by the Company, in an amount to be determined by the Principal, on behalf of the Company, on or prior to the Closing Date (the “Employee Bonus Amount”), which Employee Bonus Amount shall be an assumed liability of the Purchaser hereunder (the Unadjusted Closing Cash Amount, less the Employee Bonus Amount, shall be referred to herein as the “Closing Cash Amount”). At the Closing, the Principal shall inform the Purchaser of the specific amount of the Employee Bonus Amount, which shall be paid by the Purchaser in accordance with instructions provided by the Principal at or prior to the Closing. (b) The Closing Cash Amount shall be paid by the Purchaser at the Closing as follows: (i) first, to Health Management Corporation of America (“HMCA”), an amount equal to all principal and accrued interest, if any, owed by the Company under that certain promissory note, dated July 28, 2005 between the Company, as Maker, and HMCA, as Payee (the “HMCA Note Amount”), by wire transfer of immediately available U.S. funds, to an account designated in writing by HCMA at or prior to the Closing; and (ii) second, to Principal, an amount equal to the Closing Cash Amount, less the HMCA Note Amount, by wire transfer of immediately available U.S. funds, to an account designated in writing by Principal at or prior to the Closing. (c) In addition to the foregoing, and subject to the remaining terms of this subparagraph, a promissory note (the “Promissory Note”) will be issued (if applicable) within three ~~million two hundred sixty thousand dollars~~ (3) business days following the Closing in the form attached as Exhibit I in the principal amount equal to: three (3) times the excess, if any, of (i) Adjusted EBITDA for the annualized period of January 1, 2006 through June 30, 2006 (unaudited) (the “Annualized Earn-Out Period”), over (ii) Two Million, Nine Hundred and Eighty-Three Thousand, Eighty-Nine Dollars ($~~3,260,000~~2,983,089) (the “Base Year Amount”), provided, however that notwithstanding the foregoing, (A) the principal amount of the Promissory Note to be issued hereunder shall not exceed $2,000,000; (B) the Employee Bonus Amount shall not be considered as an expense to be taken into account in determining Adjusted EBITDA (and thus shall be added back to reach Adjusted EBITDA) in all determinations of Adjusted EBITDA under this Agreement and all other agreements entered into in connection with the ~~following manner~~transactions contemplated hereby; and (C) any amount in excess of $100,000 in any given year paid to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as compensation (including salary, bonuses or other forms of compensation) for acting as President and Chief Operating Officer (or any position with similar responsibilities) of the Purchaser shall not be treated as an expense to be taken into account in determining Adjusted EBITDA (and thus shall be added back to reach Adjusted EBITDA) in all determinations of Adjusted EBITDA under this Agreement and all other agreements entered into in connection with the transactions contemplated hereby. For clarity, the parties acknowledge that (i) if Adjusted EBITDA for the Annualized Earn-Out Period does not exceed the Base Year Amount, no Promissory Note shall be issued pursuant to this Section, and (ii) if, for example, Adjusted EBITDA for the Annualized Earn-Out Period exceeds the Base Year Amount by $500,000, the Promissory Note shall be issued in the principal face amount of $1,500,000 (i.e., $500,000 x 3 = $1,500,000). (d) The parties acknowledge and agree that, in the event the Promissory Note is issued but not paid, or in the event the Purchaser commits a material default under the Promissory Note which is not cured within the applicable cure period, and in addition to any of the remedies available to the Company and Principal, including, without limitation, any action for breach hereunder and under the Promissory Note, (i) the Non-Competition Agreement between Principal and the Company shall automatically terminate and be of no further force or effect, and (ii) at Principal’s option, the Consulting Agreement between Principal and the Company shall automatically terminate and be of no further force or effect, in which event Principal shall give the Company written notice of such termination. Upon issuance of the Promissory Note, interest on unpaid principal under the Promissory Note shall accrue at the simple rate of six percent (6%) per annum from and after the date of issuance. Any and all accrued interest under the Promissory Note shall be due and payable six (6) months after the date of issuance of the Promissory Note, with the remainder of all outstanding accrued interest and principal under the Promissory Note due and payable eleven (11) months after the date of issuance of said Promissory Note, but no later than June 30, 2007. For purposes of this Agreement, “Adjusted EBITDA” shall mean earnings of the Purchaser derived from the P.C.s before taxes, interest, depreciation and amortization, determined in accordance with GAAP on an accrual basis by the Company’s independent auditor, adjusted as follows: ~~A. The number~~ (1) neither the proceeds from nor any dividends or refunds with respect to, nor any increases in the cash surrender value of, any life insurance policy under which the Purchaser or the P.C.s, is the named beneficiary or is otherwise entitled to recovery, shall be included as income, and the premium expense related to any such life insurance policy shall not be treated as an expense; (2) the Employee Bonus Amount shall not be treated as an expense, and thus shall be added back to reach Adjusted EBITDA; and (3) any extraordinary or unusual gains or losses and any gains or losses from the sale of ~~common shares~~ any capital assets used by the Purchaser or the P.C.s or any subsidiary thereof in its operations during the applicable twelve-month periods under comparison (as opposed to assets acquired in the ordinary course of the business of the Purchaser, ~~convertible into common shares of a reporting corporation in a current status with~~ the P.C.s and its ~~SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser~~ subsidiaries for resale or other disposition) shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessableexcluded from income. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.”

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Basic Care Networks Inc)

Purchase Price. ~~The~~ Purchaser shall ~~pay~~ pay, and the Sole Member shall accept, as the purchase price (the “Purchase Price”) for the Membership Interests, in addition to the ~~Seller an~~ Purchaser acquiring the Membership Interests in Prefco subject to the Mortgage on the Property (or Purchaser otherwise satisfying the Mortgage, by prepayment or otherwise), the amount ~~equal to three million two hundred sixty thousand dollars~~ of Twenty Four Million Eight Hundred Fifty Thousand and 00/100 Dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"24,850,000.00), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as ~~quoted on the OTCBB,~~ increased or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders decreased pursuant to the ~~RRA~~provisions of Sections 7 and 13 hereof, ~~at any time subsequent to~~ which Purchase Price shall be paid by Purchaser as follows: (i) simultaneously with the execution of this ~~EPA~~Agreement, ~~and prior to~~ Purchaser shall deposit with the ~~180th day subsequent to the execution of this EPA, then four hundred thousand~~ Title Company (~~400,000~~as defined is Section 7 (ii) ~~additional shares of common stock shall be issued and delivered by Purchaser or the issuer~~hereof), as ~~applicable~~escrow agent (the “Escrow Agent”), to the ~~Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to~~ sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) (together with any interest earned thereon, the ~~RRA,~~ “Deposit”); (ii) simultaneously with Purchaser’s satisfaction or ~~be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date~~ waiver of the ~~EPA. Other penalties or sanctions described~~ conditions precedent set forth in Section 7 hereof, Purchaser shall deposit with Escrow Agent the ~~RRA may also apply.~~sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00), which amount will be added to and become part of the Deposit; and ~~B. The~~ (iii) At Closing, Purchaser shall pay ~~sixty thousand dollars~~ or shall cause the Escrow Agent to pay to Sole Member (or its designees) the Deposit ($~~60,000~~500,000.00 plus accrued interest thereon) ~~in cash, by wire transfer, coincident with~~ plus the ~~payment of pre-closing and closing expenses, for the payment of that portion~~ balance of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the ~~open market, to be paid to the Seller within five (5) days~~ amount of ~~the Closing Date. The Purchaser may substitute five hundred ten thousand dollars~~ Twenty Four Million Three Hundred Fifty Thousand and 00/100 Dollars ($~~510,000~~24,350,000.00) ~~in market value,~~ (as ~~of the date of the closing, of any registered shares,~~ increased or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms decreased pursuant to the ~~Purchaser's contract with the contract purchaser. G. In the event~~ provisions of Sections 7 and 13 hereof) in immediately available funds by wire transfer to accounts designated by Sole Member. Purchaser acknowledges that the ~~payment~~ Property is subject to the ~~Seller can~~Mortgage and that the Purchase Price shall not be ~~made~~diminished or otherwise reduced by reason thereof, ~~for any reason~~including, ~~under~~ without limitation, reductions by reason of the ~~terms and conditions set forth in sub-paragraph 1.02 (F)~~pay off of existing financing, ~~then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s)~~prepayment penalties, ~~at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars~~ or otherwise. A new Section 12A shall be added to the ~~MPC, attached herein~~ Agreement to read as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.follows:

Appears in 1 contract

Sources: Purchase and Sale Agreement (American Financial Realty Trust)

Purchase Price. (a) The purchase price ("Purchase Price") for the Assets to be purchased by the Purchaser from the Seller hereunder shall ~~pay~~ be $7,500,000, subject to the adjustment set forth in Subsection (d) of this Section 1.7, and shall be payable as follows: (i) $3,500,000 in cash (the "Cash Payment"), which sum shall be paid by bank wire transfer in immediately available funds to a bank account designated in writing by the Seller; plus (ii) $1,000,000, payable pursuant to the terms of the Note (subject to adjustment as provided below); plus (iii) $1,000,000 payable pursuant to the terms of the Supplemental Note (subject to adjustment as provided below); plus (iv) $600,000, in principal amount of Debentures; plus (v) $1,400,000 (subject to adjustment as provided in Section 1.7(e) below) by the assumption of the debt described in Schedule 1.7(a)(v) ("Assumed Debt") which is included among the Assumed Liabilities. (b) The Purchase Price (including Assumed Liabilities) shall be allocated among the Assets in the manner set forth on Schedule 1.7(b) and agreed to by the parties hereto on or prior to Closing Date. Such allocations shall be made consistent with Section 1060 of the Code and the Treasury Regulations promulgated thereunder. Each of the parties hereby covenants and agrees that it or he will not take a position on any Tax Return, before any governmental agency charged with the collection of any Tax, or in any judicial proceeding, that is in any way inconsistent with the allocation determined in accordance with this clause (b) and will cooperate with each other in timely filing consistent with such allocation on Forms 8594, Asset Acquisition Statement, with the IRS, and will use their reasonable best efforts to sustain such allocation in any subsequent Tax audit or Tax dispute. If there is any adjustment to the Purchase Price, the Purchaser and the Seller shall reflect such adjustment to increase or decrease the particular allocations set forth on Schedule 1.7(b) to reflect the nature of such adjustment, provided that adjustments under Section 1.7(d) and Section 1.8 shall be to the good will allocation. (c) The Cash Payment shall be adjusted as follows: (i) if Assumed Debt exceeds $1,400,000, the Cash Payment shall be reduced by an amount equal to ~~three million two hundred sixty thousand dollars~~ the difference between Assumed Debt and $1,400,000 and (ii) if Assumed Debt is less than $~~3,260,000~~1,400,000, the Cash Payment shall be increased by an amount equal to the lesser of (A) in the ~~following manner:~~difference between $1,400,000 and the Assumed Debt and (B) $250,000. ~~A. The number~~ (d) If the actual amount of ~~common shares~~ sales generated by the Business ("Actual Sales") at the end of the ~~Purchaser~~three 12-month periods from July 1 through June 30 beginning July 1, ~~convertible into common shares~~ 1999 through June 30, 2002 is less than the Required Sales Amount applicable to such period, amounts payable under the Note and the Debenture shall be reduced effective on June 30 of the applicable period by an amount equal to the product of (i) 0.169 times (ii) the difference between Actual Sales and Required Sales. If the actual amount of sales generated by the Business that is not subject to commission ("Actual Non-Commission Sales") is less than the Required Non- Commission Sales Amount in any such period, amounts payable under the Note and the Debenture shall be reduced effective on June 30 of the applicable period by an amount equal to the aggregate commissions paid during such period with respect to such shortfall. Any reduction pursuant to this subsection (d) shall first be applied to the outstanding principal balance of the Note and, then to the outstanding principal amount of the Debentures. Notwithstanding the foregoing, if (a) Purchaser substantially and materially changes the scope of responsibilities of any Shareholder, (b) such Shareholder shall have notified the Purchaser of such change within thirty (30) days of such occurrence and (c) there is a ~~reporting corporation~~ decrease in ~~a current status with its SEC filing requirements~~ Actual Sales, then the Required Sales Amount and ~~currently quoted on~~ the ~~OTCBB~~ Required Non-Commission Sales Amount shall be reduced to such amounts as the Seller and the Purchaser reasonable shall determine by mutual agreement. (~~the "mergee"), issued by~~ e) Purchaser shall ~~be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued~~ prepare and deliver to Seller ~~shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.~~an annual sales report ("Annual Sales Report") ~~One Hundred Eighty (180) days from this stock issuance, if the market price~~ detailing Actual Sales for each of the ~~issuers common stock, as quoted on~~ first three years following the ~~OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares~~ Closing. Such Annual Sales Reports shall be delivered ~~to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock~~ within 30 days of the ~~issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date~~ end of the ~~effectiveness~~ relevant period. (f) Amounts payable under the Supplemental Note shall be adjusted as follows: (i) if any Key Shareholder fails to perform his obligations under Section 6.4 of ~~the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders~~ this Agreement amounts payable pursuant to the ~~RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock~~ Supplemental Note shall be ~~issued~~ reduced by thirty three and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars one-third percent ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F33.33%), (Gii) if a second Key Shareholder finds to perform his obligations under such section, amounts then payable under the Supplemental Note shall be reduced by fifty percent (50%); and (Hiii) ~~below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in~~ if the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable third Key Shareholder fails to ~~the Purchaser from the contemplated purchaser(s)~~ perform his obligations under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be madeSection, ~~for any reason,~~ amounts payable under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars Supplemental Note shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up reduced to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above0. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Disc Graphics Inc /De/)

Purchase Price. ~~The Purchaser~~ In consideration of the sale and transfer of the Shares, at the Closing, the Buyer shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause ~~two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market,~~ to be paid to the ~~Seller within five~~ Stockholders, in accordance with their Respective Portions, an aggregate purchase price equal to Sixty-Two Million Five Hundred Eighty-Six Thousand Two Hundred Seventy-Eight Dollars (5$62,586,278), minus (a) ~~days~~ any and all Selling Expenses and (b) the Holdback Amount (the foregoing computation being referred to in this Agreement as the “Purchase Price”), via wire transfer of immediately available funds to the respective accounts designated by the Stockholders. Subject to the terms of Article VII and Section 5.6 below, on the eighteen (18) month anniversary of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value~~Closing, ~~as of~~ the ~~date of the closing, of any registered shares,~~ Buyer shall pay or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, cause to be paid to each Stockholder its Respective Portion of the ~~Seller~~ Holdback Amount, less the amount required to satisfy any then-unresolved Claim(s) made by the ~~fifth (5th ) day subsequent~~ Buyer Indemnified Parties in accordance with the terms of Article VII or Section 5.6 below, via wire transfer of immediately available funds to the ~~Closing Date~~respective accounts designated by the Stockholders. After any final judgment or award shall have been rendered by a court, ~~then~~ arbitration board or administrative agency of competent jurisdiction with respect to any such Claim(s) and the ~~Purchaser shall immediately file an S-8 registration statement registering such shares for the services~~ expiration of the ~~principals and agents~~ time in which to appeal therefrom, or a settlement of ~~the Seller, as designated solely by the Seller, so as to allow~~ any such ~~shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered~~ Claim(s) shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition tohave been consummated, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller Buyer shall be entitled to ~~a UCC-1 lien~~ retain from the remaining Holdback Amount the amount of Damages so awarded or agreed-upon, and shall thereafter pay or cause to be paid to each Stockholder its Respective Portion of any remaining portions of the Holdback Amount (less the amount required to satisfy any other Claim(s) that have not then been finally determined or settled), via wire transfer of immediately available funds to the respective accounts designated by the Stockholders. Simple interest shall accrue on the ~~general and total revenue receipts of the Purchaser~~Holdback Amount, as ~~received in cleared Federal Funds~~the same may be reduced from time to time, ~~until such time as~~ at the rate of 5.50% per annum. Upon the payment of all or any portion of the ~~$300,000 payment~~Holdback Amount to any Stockholder, ~~plus a penalty of fifty thousand ($50,000) dollars, is~~ the Buyer shall pay or cause to be paid to such Stockholder all accrued but unpaid interest on the ~~Seller. I. In~~ portion of the ~~event that~~ Holdback Amount received by such Stockholder. Notwithstanding the ~~Equipment sold by~~ foregoing, as a condition to receiving any payment under this Agreement, each Stockholder agrees to complete and execute the ~~Seller~~ Buyer’s standard “Payee Setup Form” (a blank form of which has been provided to each Stockholder prior to the ~~Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser,~~ Effective Date) at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal least ten (10) business days prior to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H abovedate for such payment. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Bell Industries Inc /New/)

Purchase Price. On or prior to March 20, 2000, Seller shall notify -------------- Buyer in writing whether Seller elects to receive payment for the Purchased Assets as set forth in Section 1.4(a) or Section 1.4(b) (the "Purchase Price Notice"). If the Purchase Price Notice is not received by Buyer on or before March 20, 2000, then the Buyer shall be deemed to have elected to receive payment for the Purchased Assets as set forth in Section 1.4(b). (a) The ~~Purchaser~~ purchase price (the "Cash Purchase Price") for the Purchased Assets shall be $12,000,000. The Cash Purchase Price shall be paid by Buyer by the delivery at the Closing of cash or immediately available funds pursuant to wire transfer instructions provided to Buyer by Seller prior to Closing. (b) The purchase price (the "Alternate Purchase Price") for the Purchased Assets shall be $11,500,000 (the "Cash Portion") plus the Earnout Payments (defined below), if any, as follows: (i) At Closing, Buyer shall pay the Cash Portion to Seller in cash or immediately available funds pursuant to wire transfer instructions provided to Buyer by Seller prior to Closing. (ii) In addition to the Cash Portion, Buyer shall make additional payments (each an "Earnout Payment") to Seller (if any) equal to 50% of Buyer's collections for future services which are six months old or older over 50% of its standard charges, calculated as set forth in Section 1.4(b)(iii), beginning October 1, 2000 and at the end of each calendar quarter thereafter; provided, however, that at such time as $1,500,000 has been paid pursuant to this Section 1.4(b), Buyer shall have no further obligation to make any additional Earnout Payments. (iii) Following each calendar quarter beginning January 1, 2001, Buyer shall determine (i) the total revenue collected by it since the Closing ("Revenues") for Charges (defined below) for services performed after the Closing and more than six months prior to the end of the quarter (the "Calculation Period") and (it) the total of the Charges during the Calculation Period. Buyer shall pay to ~~the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000~~Seller, within ten ( 10) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) business days of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000)~~ end of such calendar quarter, 50% of all Revenues in ~~market value, as~~ excess of 50% of the ~~date~~ Charges for such period less the total of ~~the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable~~ all Earnout Payments previously paid to ~~the~~ Seller ~~in lieu of the mergee's closing shares~~during all prior periods. ~~D. In~~ (iv) As used in this Section 1.4(b), "Charges" means the ~~event that~~ total standard charges for services performed during the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability Calculation Period computed in the ~~open market, to be paid to the Seller~~ manner currently calculated by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be Mercy in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) belowits other operations. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Air Methods Corp)

Purchase Price. The Purchaser ~~shall~~ agrees to pay to the ~~Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000)~~ Sellers and shall deliver in the ~~following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation~~ manner provided in ~~a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares)~~Section 2.2.2 hereof, subject to ~~adjustment based~~ and upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in ~~sub-paragraph 1.02~~ this Agreement, an aggregate amount equal to Seven Million and 00/100 Dollars (F$7,000,000.00) (the "PURCHASE PRICE"), ~~then~~ plus any Adjustment Amount due pursuant to Section 1.3 hereof, as follows: 1.2.1. The Purchaser has previously paid to Sellers, upon the execution of the letter of intent dated July 19, 2000, three hundred thousand and 00/100 dollars ($300,000.00) (the "DEPOSIT") which is being held in escrow with Pennsylvania Capital Bank pending the Closing of the Transaction. Upon Closing or the occurrence of any other event which the Purchaser and Sellers have agreed herein would require the release of the Deposit to the Sellers, the Purchaser shall perform all things necessary on the part of the Purchaser to cause the release of the Deposit to the Seller. Upon Closing or the occurrence of any other event which the Purchaser and Sellers have agreed herein would require the release of the Deposit to the Purchaser, the Sellers shall perform all things necessary on the part of the Sellers to cause the release of the Deposit to the Purchaser. The Deposit is non-refundable by the Sellers, except in the event of the following: (i) the Closing does not occur as a direct result of Sellers' failure to obtain any third party consent or authorization as required pursuant to this Agreement; or (ii) the Closing does not occur for reasons other than the Purchaser's default under the terms of this Agreement. 1.2.2. At the Closing, the Purchaser shall repay all outstanding principal and accrued interest of, or assume obligations under, all liabilities set forth in Schedule 1.2.2 (the "SCHEDULED DEBT"). The total aggregate amount of outstanding principal and accrued interest of the Scheduled Debt shall not be in excess of two million five hundred thousand and 00/100 dollars ($2,500,000.00). The Purchaser shall cause (at Purchaser's sole cost and expense) the release and termination at the Closing of all corresponding guarantees or security agreements of the Sellers (or any one or more of them) associated with any such Scheduled Debt (collectively, the "SELLER SECURITY DOCUMENTS"). 1.2.3. At the Closing, the Purchaser shall issue to the Sellers shares of common stock of the Purchaser of the same class as the common stock of the Purchaser which is currently registered under the Securities Exchange Act of 1934, as amended, (the "EXCHANGE ACT") and currently traded on the NASDAQ small cap exchange ("CHST STOCK"), as determined in accordance with this Section 1.2.3 and further subject to the provisions of Article XII hereof. The number of shares of CHST Stock issueable and to be registered to the Sellers hereunder (the "SELLER SHARES") shall be determined by dividing: (i) Five hundred thousand dollars ($~~300,000~~500,000.00) ~~payment due~~ (the "GROSS STOCK CONSIDERATION"); by (ii) the average of closing prices of CHST Stock on the NASDAQ small cap exchange for each of the thirty (30) trading days ending two trading days prior to Closing Date (the "CHST CLOSING SHARE PRICE") 1.2.4. In addition to the Purchaser's obligations with respect to the Seller ~~shall emanate from~~ Shares contained elsewhere in this Agreement, the ~~next subsequent sale~~ Purchaser hereby agrees as follows: (i) ▇▇▇▇, ▇▇▇▇▇ and the Trust (each individually referred to as an "ELECTING SELLER") may elect, by written notice to the Purchaser delivered within three (3) days after the date on which the Seller Shares then held by such Electing Seller, first become tradable without any restriction imposed under the Securities Act of ~~such manufactured equipment by~~ 1933 (the "SECURITIES ACT") or this Agreement (the "EFFECTIVE DATE") on a United States stock exchange (the "LISTING EXCHANGE") to require the Purchaser to ~~its contract purchaser(s)~~repurchase from such Electing Seller all (but not less than all) of the Seller Shares then owned by such Electing Seller at a price equal to (hereinafter, ~~at its next delivery~~ the "OPTION REPURCHASE PRICE"): (A) the CHST Closing Share Price, multiplied by (B) the number of Seller Shares then owned by such ~~equipment, and a penalty of twenty-five thousand ($25,000) dollars~~ Electing Seller. The Purchaser shall ~~be added~~ pay to an Electing Seller the Option Repurchase Price with respect to the ~~MPC, attached herein as Exhibit B of this Agreement, at~~ Seller Shares repurchased from such Electing Seller in immediately available funds upon the ~~time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled~~ Electing Seller's delivery to the Purchaser (or the Purchaser's transfer agent or other representative) of all Seller Shares subject to repurchase from such Electing Seller. H. (ii) In the event that the ~~payment~~ CHST Closing Share Price on the Effective Date is greater than the average closing prices of the CHST Stock on the Listing Exchange for the thirty (30) day period ending on the last trading day of the Listing Exchange immediately prior to the ~~Seller cannot be made, for any reason, under~~ Effective Date (the ~~terms and conditions set forth in sub-paragraph 1.02 (G~~"EFFECTIVE DATE SHARE PRICE"), then the ~~three hundred thousand dollars~~ Purchaser shall pay to ▇▇▇▇▇▇▇ in immediately available funds, an amount equal to: (~~$300,000~~A) ~~payment due to~~ the ~~Seller~~difference between (x) the CHST Closing Share Price, and (y) Effective Date Share Price; multiplied by (B) the total number of Seller Shares then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Sellerowned by ▇▇▇▇▇▇▇. I. (iii) In the event that the ~~Equipment sold by~~ Proposed Registration Statement (as defined in Article XII hereof) does not become effective on or before the ~~Seller~~ date which is one hundred eighty (180) days after the date on which the Proposed Registration Statement is filed with the Securities and Exchange Commission, or the CHST Stock is not listed on (or has been delisted from) the NASDAQ or any other United States stock exchange at any time on or before the date which is one year after the date on which the Proposed Registration Statement is filed with the Securities and Exchange Commission (each such date hereinafter referred to as the ~~Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000~~"MANDATORY REDEMPTION DATE"), then the ~~Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that~~ Purchaser shall redeem the Seller ~~include additional Equipment to equal~~ Shares then held by the ~~$5,400,000 appraised fair market value. This Agreement may be amended to include a greater~~ Sellers for an aggregate amount ~~of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price~~ equal to the ~~pro-rata~~ number of ~~additional shares based on~~ Seller Shares then held by the ~~number of shares in~~ Sellers multiplied by the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.greater of:

Appears in 1 contract

Sources: Purchase Agreement (Creative Host Services Inc)

Purchase Price. (a) The fixed purchase price for the Shares shall be Two Million ($2,000,000.00) Dollars (the "Purchase Price"). (b) At the Closing, Purchaser shall pay ~~to the Seller an amount equal to three million two hundred sixty thousand dollars~~ Five Hundred Thousand ($~~3,260,000~~500,000.00) to Seller by wire transfer of immediately available funds to an account designated by Seller. The balance of the purchase price shall be paid by a Purchase Money Promissory Note (the "Note") in the ~~following manner: A. The number~~ principal amount of ~~common shares~~ $1,500,000 bearing interest at ten (10%) percent per annum which shall be payable on the first day of each month after Closing until the first anniversary date of the ~~Purchaser~~Note. Thereafter, ~~convertible into common shares of a reporting corporation~~ principal together with accrued interest shall be payable in ~~a current status~~ 240 equal monthly payments with ~~its SEC filing requirements and currently quoted~~ the entire remaining principal balance due on the ~~OTCBB~~ second anniversary date of the Note. The Note shall be secured by a first priority mortgage (the "~~mergee~~Mortgage"~~), issued~~ ) on all of the real property owned by ~~Purchaser shall be eight hundred sixteen thousand (816,000) shares (~~Alabaster together with all improvements thereon and an Assignment of all leases on the ~~"mergee shares),~~ subject ~~to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable~~property. 1.(c) ~~One Hundred Eighty (180) days from this stock issuance, if the market price~~ Within one day of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this ~~EPA~~Agreement, ~~and prior to the 180th day subsequent to the execution of this EPA~~Purchaser will deposit with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ~~then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer~~PC, as ~~applicable~~escrow agent, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date sum of ~~the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars~~ Twenty-Five Thousand ($~~60,000~~25,000.00) ~~in cash~~Dollars, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 which sum shall be paid to Seller at the ~~Seller in a manner identical to,~~ Closing and ~~in addition to,~~ credited against the ~~terms and conditions described in Sections 1.02 (F), (G~~amounts owing pursuant to Section 2.1(b) ~~and (H) below. E. The~~ hereof. If Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable requests to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on extend the Closing Date ~~a contract providing for such payment~~ as provided herein, Purchaser shall deposit an additional Twenty-Five Thousand ($25,000.00) Dollars with Escrow Agent to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within be credited or applied with the initial ~~deliveries to such contract purchaser so as to effect payment to~~ $25,000 deposit. If the Closing does not occur for whatever reason (other than by reason of a breach by Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms ~~pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made~~hereof) except as provided in Paragraph 7.1(a) below, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such ~~manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars~~ amount shall be ~~added~~ paid to Seller as compensation for the ~~MPC~~costs and expenses, ~~attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased~~ lost opportunity suffered by ~~the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the~~ Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Sellerliquidated damages. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Vista 2000 Inc)

Purchase Price. (a) The ~~Purchaser~~ purchase price (the "Purchase Price") for the Purchased Accounts shall be Fifteen Million One Hundred Seven Thousand One Hundred Forty-five and 00/100 Dollars ($15,107,145.00), which amount has been calculated as set forth on Exhibit B hereto. At the Closing, Buyer shall pay to Seller the ~~Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000)~~ full Purchase Price by wire transfer in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered immediately available funds to the account specified below: Account Name: NYLIFE Structured Asset Management Company Ltd. Account Number: ▇▇▇▇▇▇▇▇▇▇ Bank Name: The Bank of New York ABA#: ▇▇▇-▇▇▇-▇▇▇ (i) Seller ~~so as~~ and Buyer acknowledge that ownership of and payment for "address reassignment" and "person reassignment" accounts was in dispute prior to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this ~~EPA~~Agreement. An "address reassignment" account is an account that both (x) covers premises previously monitored by Buyer pursuant to a Series A Contract that was terminated due to relocation of the Customer under such contract from such premises, (y) is with a new Customer in such premises who entered into a contract with Buyer within 120 days after termination of the Series A Contract described in clause (x) and covering such premises. A "person reassignment" account is an account that is (x) with a Customer who had an account owned by Seller, which account was terminated due to relocation of the Customer, and ~~prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand~~ (~~400,000~~y) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date created within 120 days after termination of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, account at the ~~time of~~ Customer's prior location. Upon and following the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafterClosing, the "~~Parent~~address reassignment" and "~~), upon~~ person reassignment" accounts shall be the ~~execution and effectiveness~~ property of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPABuyer, and if Seller had any right, title or interest therein, Seller shall no longer have any right, title or interest in and ~~all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent~~ to ~~these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based~~such accounts.

Appears in 1 contract

Sources: Accounts Purchase Agreement (Nylife Structured Asset Management Company LTD)

Purchase Price. ~~The Purchaser~~ Subject to the adjustments hereinafter set forth, the purchase price for the Assets and the Agreement Not To Compete provided for in Section 12.2(g) hereof (the "Agreement Not to Compete") shall be the sum of Twenty-Two Million and 00/100 Dollars ($22,000,000.00) plus Nine Hundred Thousand (900,000) shares of the Common Stock, no par value per share, of BAB Holdings, Inc. (collectively the "Purchase Price"). Notwithstanding any provision of this Agreement to the contrary, in the event the aggregate amount of cash and cash equivalents which the Sellers have on hand and on deposit in banks and brokerage accounts as of the Date of Closing is less than Five Hundred Thousand and No/100 Dollars ($500,000.00), the Purchase Price shall be reduced dollar-for-dollar by the amount of the deficit; provided, however, that on the Settlement Date (as hereinafter defined), the Sellers and Shareholders may pay to the ~~Seller an~~ Purchaser by certified or bank cashier's check (or by wire transfer of immediately available funds to Purchaser's designated account) the amount ~~equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number~~ of ~~common shares~~ such deficit and upon receipt of such payment by the Purchaser, ~~convertible into common shares~~ the combined tangible net worth of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted~~ the Sellers reflected on the ~~OTCBB~~ Closing Balance Sheet (~~the "mergee"), issued by Purchaser~~ as hereinafter defined) shall be ~~eight hundred sixteen thousand (816,000) shares (~~deemed to be increased by the ~~"mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares~~amount of such payment. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, As soon as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to practicable following the execution of this ~~EPA~~Agreement, ~~and prior to~~ the ~~180th day subsequent to the execution of this EPA~~parties shall, ~~then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer~~at Seller's expense, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause ~~two hundred four thousand (204,000) common shares of the mergee~~ Ernst & Young L.L.P. (the "~~mergee closing shares~~Auditor") ~~that are free~~ to prepare, audit and issue an unqualified opinion on the combined balance sheet of Sellers as of the close of business of the Business on December 31, 1995 (the "Opening Balance Sheet"). The Opening Balance Sheet shall be prepared in accordance with GAAP (as hereinafter defined) consistently applied, with appropriate adjustments to eliminate intercompany transactions of the Sellers. As soon as practicable after the Date of Closing (but in any event within thirty (30) days after the Date of Closing), the Purchaser, at its expense, shall cause the Auditor to prepare, audit and issue an unqualified opinion on the combined balance sheet of the Sellers as of the close of business of the Business on the Date of Closing and without giving effect to the consummation of the transaction contemplated herein ("Closing Balance Sheet"). The Closing Balance Sheet shall be prepared in accordance with GAAP consistently applied and in a manner consistent with the preparation of the Opening Balance Sheet, with appropriate adjustments to eliminate intercompany transactions of the Sellers; provided, however, the Closing Balance Sheet shall include accruals for (i) all amounts due or to become due and payable under the Operating Contracts with respect to any period of time ending on or before the Date of Closing, (ii) all amounts accrued for wages and salaries payable to Sellers' employees, including vacation and sick leave, with respect to any period of time ending on or before the Date of Closing (but specifically excluding any benefits under any employee benefit plans of any ~~restrictions~~ nature, none of which shall be assumed by Purchaser), and (iii) all utility charges, including sewer, water, gas, electricity, telephone and garbage disposal, as well as other current operating expenses of the Business with respect to ~~their transferability~~ any period of time ending on or ~~marketability in~~ before the ~~open market~~Date of Closing. The Closing Balance Sheet shall not include accruals for, ~~to be paid~~ and Purchaser expressly does not assume any liability for, fees and expenses incurred by the Sellers with respect to the ~~Seller~~ transaction contemplated hereby (including, but not limited to, counsel fees, investment banking fees, brokers fees, auditing fees, and related expenses). Both the Operating Balance Sheet and the Closing Balance Sheet (individually a "Balance Sheet" and collectively the "Balance Sheets") shall contain a calculation of the combined tangible net worth of the Sellers as of their respective dates (i.e., total combined tangible assets less total combined tangible liabilities, in each case as reflected on the applicable Balance Sheet). The Auditor shall promptly deliver each Balance Sheet to the Purchaser and the Sellers following the preparation thereof. Representatives of the Purchaser and Sellers shall have the right to review the Balance Sheets and perform other audit and review procedures, including a review of the working papers of the Auditor relative to the preparation of such Balance Sheets. Each party shall bear its own expenses incurred in connection with the review of the Balance Sheets. The parties shall be deemed to have accepted the Balance Sheets and the combined tangible net worth of the Sellers reflected thereon unless within ~~five~~ fifteen (515) days after the last date of the ~~Closing~~ Auditor's transmittal of the applicable Balance Sheet to the parties (the "Delivery Date~~. The Purchaser may substitute five hundred ten thousand dollars ($510,000)~~ "), they give written notice to the other parties and to the Auditor of their good faith objection to any item therin setting forth a detailed description of such objection and the amount they have determined in ~~market value,~~ good faith as the consolidated tangible net worth of the Sellers as of the date of such Balance Sheet. Any disagreement or controversy between Sellers and Purchaser which is not resolved by Sellers and Purchaser within thirty (30) days following the ~~closing, of any registered shares,~~ Delivery Date shall be determined by arbitration as follows. Each party shall designate a firm (other than the Auditor or ~~shares exempt from registration, of another corporation acceptable to~~ the ~~Seller in lieu~~ current or former auditor of the ~~mergee's closing shares. D.~~ Sellers) of independent certified accountants of recognized national standing to resolve such dispute. If the two firms cannot agree on a resolution within three weeks from the date it is submitted to them, they shall jointly agree on a third firm of independent certified accountants of recognized national standing, whose decision shall be binding on both Sellers and Purchaser. Each party shall be responsible for the costs of the accountant selected by it and agree to share the cost of the third accountant. In the event ~~that~~ the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services consolidated tangible net worth of the ~~principals and agents of the Seller,~~ Sellers as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller reflected on the Closing ~~Date a contract providing for such payment to~~ Balance Sheet is greater than the ~~Seller and for its obligation to title such manufactured equipment to~~ consolidated tangible net worth of the ~~Seller; (2) title such piece(s) of manufactured equipment to~~ Sellers reflected on the ~~Seller during~~ Opening Balance Sheet, the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser Purchase Price shall be increased by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any amount of the ~~terms pursuant to the Purchaser's contract with the contract purchaser. G. In~~ excess. However, in the event ~~that~~ the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time consolidated tangible net worth of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser Sellers reflected on the Closing ~~Date has an appraised fair market value in use of~~ Balance Sheet is less than ~~$5,400,000~~the consolidated tangible net worth of the Sellers reflected on the Opening Balance Sheet, ~~then~~ the ~~Purchaser, at its sole discretion, may choose to effect~~ Purchase Price shall be reduced by the ~~closing on a lesser~~ amount of ~~Equipment and pay a pro-rata amount, in cash and stock, on~~ the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H abovedifference. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Bab Holdings Inc)

Purchase Price. The ~~Purchaser~~ aggregate purchase price (the “Purchase Price”) for the Purchased Interests shall ~~pay to~~ be consideration comprised of the ~~Seller~~ following: (i) an amount of cash equal to ~~three million two hundred sixty thousand dollars~~ $23,000,000 (~~$3,260,000~~the “Cash Purchase Price”), (ii) ~~in the following manner: A. The number of common~~ 1,685,717 shares of Buyer Common Stock and (iii) the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and nonEarn-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicableout Payment Amount, to the ~~Seller immediately following such occurrence~~extent payable in accordance with Section 2(b). ~~Such additional Shares issued will bear registration rights pursuant~~ Any Holdback Amount shall be paid or retained in accordance with Section 6. (b) Earn-out Amount. Subject to the ~~RRA~~conditions set forth in this Section 2(b) and as additional consideration for the Purchased Interests, ~~or be eligible for exemption from Registration,~~ Buyer shall make the following additional payments (if any) to Seller (the “Earn-out Payment Amount”) as if and when such ~~Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash,~~ amounts become due and payable by wire ~~transfer, coincident with the~~ transfer of immediately available funds to an account or accounts designated by Seller: (x) a payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee $4,000,000 (the ~~"mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market~~“First Earn-out Payment Amount”), ~~to be paid to the Seller~~ payable within five (5) ~~days~~ Business Days of the date that EBITDA for the First Earn-out Period is finally determined, solely in the event that the First Earn-out Target is achieved; and (y) a payment of $8,000,000 (the “Second Earn-out Payment Amount”), with $4,000,000 payable within five (5) Business Days of the date that EBITDA for the Second Earn-out Period is finally determined and $4,000,000 payable on the third year anniversary of the Closing Date~~. The Purchaser may substitute five hundred ten thousand dollars ($510,000)~~ , in ~~market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller~~ each case solely in ~~lieu of the mergee's closing shares. D. In~~ the event that the ~~Purchaser, for any reason, shall fail, within seventy~~Second Earn-~~two (72) days subsequent~~ out Target is achieved. Subsequent to the ~~Closing Date~~Closing, Buyer shall use its commercially reasonable efforts to ~~arrange for~~ operate the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller CRM Business in a manner ~~identical to~~to achieve the First Earn-out Target and the Second Earn-out Target, respectively, and Buyer shall not, directly or indirectly, take any actions in ~~addition to~~bad faith that would have the purpose of avoiding or reducing the Earn-out Payment Amounts hereunder. To the extent Buyer sells more than 10% of the CRM Assets following the Closing but prior to the second anniversary of the Closing, the First Earn-out Target and the Second Earn-out Target, respectively, shall be deemed to have been achieved if the sale takes place prior to the determination of EBITDA for the First Earn-out Period or the Second Earn-out Period, respectively, provided, however that Buyer may sell or assign more than 10% of the CRM Assets to an Affiliate or Subsidiary provided that any revenue transferred to such Affiliate or Subsidiary will be included in the calculation of EBITDA. For the avoidance of doubt, the Earn-Out Payments Amounts are independent of each other and Buyer’s liability to pay the Second Earn-out Payment Amount pursuant to this Section 2(b) is not dependent, in any way, upon the liability to pay, or not, the First Earn-Out Payment Amount. Within thirty (30) days following the end of each of the First Earn-out Period and the Second Earn-out Period, Buyer shall prepare and deliver to Seller a written statement (in each case, an “Earn-out Statement”) setting forth in reasonable detail its determination of EBITDA for the applicable Earn-out Period and the calculation of the resulting Earn-out Payment Amount, if any, in accordance with Section 2(b). The Parties agree that Seller shall have the opportunity to review all materials and information used by ▇▇▇▇▇ in preparing the Earn-out Statement and Buyer shall make available such personnel as are reasonably necessary to assist Seller in its review of such statement. If the EBITDA for any Earn-out Period is less than the applicable Earn-out Target solely as a result of amounts billed during such period not being collected during such period (i.e. amounts billed are equal to or in excess of the applicable Earn-out Target for such Earn-out Period), then, notwithstanding that the applicable Earn-out Payment would not be payable, Buyer shall nonetheless be liable to Seller for such Earn-out Payment in the event such amounts which were billed but not collected during such period are thereafter collected. Seller agrees that the Earn-out Payment Amount shall be subordinated to the Buyer’s obligations to its senior lender pursuant to a subordination agreement to be entered into as of the Closing Date by and between Seller and such senior lender which subordination agreement shall contain the terms and conditions ~~described~~ specified in ~~Sections 1.02 (F), (G~~Schedule 2(b) and ~~(H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under~~ such other standards terms and conditions as ~~described in~~ the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement~~parties shall mutually agree. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Interest Purchase Agreement

Purchase Price. The ~~Purchaser~~ Purchase Price of the Property (“Purchase Price”) is Twenty Five Million One Hundred Sixty Three Thousand and 00/100ths Dollars ($25,163,000.00), such Purchase Price being approximately Thirty Seven Thousand, Eight Hundred Twenty Eight and 00/100th Dollars ($37,828) per net plantable acre based on six hundred sixty five and 2/10ths (665.2) plantable acres, to be verified by survey as provided below. The Purchase Price shall ~~pay~~ be adjusted upward or downward to reflect the actual net plantable acres on the Land if the actual net plantable acres of the Land, together with the net plantable acres of the property of the Concurrent Escrows, as defined below, vary from the total of the foregoing estimate plus the estimates set forth in the Purchase and Sale Agreement and Joint Escrow Instructions for the Concurrent Escrows by more than 1.0% as determined by an ALTA Survey. Buyer shall consult with Seller as to the parameters for determination of the net plantable acres by ALTA survey (for example, how the canopy will be surveyed for plantable acres), but shall not be bound by the Seller’s recommendations provided that reasonable parameters for the commodity type are utilized. Subject to adjustment as set forth above, the Purchase Price shall be allocated as follows: (i) Seven Million Nine Hundred Forty One Thousand and 00/100ths Dollars ($7,941,000.00) for the Tulare Property (the “Tulare Purchase Price”) and (ii) Seventeen Million Two Hundred Twenty Two Thousand and 00/100ths Dollars ($17,222,000.00) for the Fresno Property (the “Fresno Purchase Price”). The Purchase Price shall be payable as follows: (a) Notwithstanding any term or provision of this Agreement, Buyer hereby delivers to Seller an amount equal to ~~three million two hundred sixty thousand dollars~~ One Hundred 00/100ths Dollars ($~~3,260,000~~100.00) from the Initial Deposit (as hereinafter defined) (the “Independent Consideration”) as independent consideration to Seller for having entered into this Agreement at any time subsequent to execution hereof. The Independent Consideration shall be nonrefundable if Close of Escrow does not occur for any reason related to a Buyer default or termination under this Agreement, or due to a failure of a Buyer condition under Section 7.1, and to the extent that this Agreement requires any funds to be refunded to Buyer, any amount so refunded shall not include the Independent Consideration; provided, however, that the Independent Consideration shall be refunded to Buyer from Seller, as part of Buyer’s damages, in the event of a Seller default under this Agreement. (b) Within three (3) business days following ~~manner: A. The number~~ the Effective Date, Buyer shall deposit with Escrow Holder the sum of ~~common shares~~ Five Hundred Thousand and 00/100ths Dollars ($500,000.00) (together with any and all interest thereon, the “Deposit”), in cash, by cashier’s check or wire transfer of immediately available good funds. Upon receipt of the ~~Purchaser~~Deposit, ~~convertible~~ Escrow Holder will immediately deposit it into ~~common shares~~ an interest bearing account at a commercial bank designated by Buyer, in trust for Escrow Holder, with interest to accrue for Buyer’s benefit. The Deposit will be paid to Seller as a part of the Purchase Price at the Closing or as liquidated damages in the event of Buyer’s default under this Agreement as provided below. Buyer shall have the right to receive a ~~reporting corporation~~ return of the Deposit if any of the following shall occur: (i) Seller shall be in default under this Agreement; (ii) Buyer makes a ~~current status with its SEC filing requirements and currently quoted on~~ timely election to withdraw as a result of Seller’s refusal to remove an Objectionable Exception as provided in Section 6.3 below; (iii) Buyer makes a timely election to withdraw before the ~~OTCBB~~ end of the Due Diligence Period as set forth in Section 7.2 below; or (iv) the failure of one or more conditions precedent to Buyer’s obligation to perform by the date indicated, as provided in Sections 7.1 below. (c) The balance of the Purchase Price (the ~~"mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~“Balance”), subject to adjustment ~~based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller~~ as provided above, shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and deposited into Escrow prior to the ~~180th day subsequent~~ Closing and paid to ~~the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the~~ Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by cashier’s check or wire ~~transfer, coincident with the payment~~ transfer of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreementavailable good funds, at the ~~time~~ Close of ~~the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller~~Escrow. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (American Farmland Co)

Purchase Price. The ~~Purchaser shall pay~~ aggregate consideration paid to the ~~Seller~~ Sellers and the Former Option Holders for the Target Shares (the “Purchase Consideration”), shall be cash in an aggregate amount equal to three million ~~two hundred sixty thousand~~ United States dollars ($~~3,260,000~~3,000,000) in (the ~~following manner: A. The~~ “Cash Payment”) and such number of ~~common shares~~ Ordinary Shares of ~~the Purchaser~~Parent, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 nominal value NIS 1.00 per share, ~~a sufficient number of additional shares shall be delivered~~ equal to the ~~Seller so as to constitute a dollar value in the 2.~~quotient of: (a) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four five million five hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand United States dollars ($~~60,000~~5,500,000), divided by (b) ~~in cash, by wire transfer, coincident with~~ the ~~payment~~ Fair Market Value of ~~pre-closing and closing expenses,~~ the Ordinary Shares of Parent for the ~~payment of~~ thirty (30) trading days immediately preceding the Closing, provided however that ~~portion of~~ the ~~Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser~~ denominator shall ~~cause two hundred four thousand~~ not be greater than one United States dollar and twenty five United States cents (~~204,000~~$1.25) ~~common shares of the mergee~~ (the ~~"mergee closing shares"~~“Ordinary Shares”), as follows: (a) ~~that are free of any restrictions as to their transferability or marketability~~ Parent shall collectively pay the Sellers and the Former Option Holders cash in ~~the open market, to be paid~~ an aggregate amount equal to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to Cash Payment on the Closing Date, ~~to arrange for the shares described~~ in ~~1.02~~ accordance with Schedule A attached hereto; (Cb) ~~above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to~~ on the Closing Date, ~~then~~ Parent shall collectively issue to the ~~Purchaser shall immediately file an S-8 registration statement registering such shares for~~ Sellers and the ~~services~~ Section 102 trustee on behalf of the ~~principals and agents~~ Former Option Holders, one half (1/2) of the ~~Seller, as designated solely by~~ Ordinary Shares (the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F“Initial Shares”), ~~(G)~~ in accordance with Schedule A attached hereto; and (Hc) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date, Parent shall collectively issue one half (1/2) of the Ordinary Shares (the “Trust Shares”) to the Escrow Agent, and which shall be released by the Escrow Agent to the Sellers and one of the Former Option Holders on a monthly basis over a two year period commencing as of the Closing Date ~~a contract providing for such payment~~ where 1/24 of the Trust Shares shall be released to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so that Former Option Holder on a monthly basis, in accordance with Schedule A attached hereto, all as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions further set forth in ~~sub~~the Escrow Agreement (as defined below) with a portion of the Trust Shares with a Fair Market Value for the thirty (30) trading days immediately preceding the Closing equal to one million two hundred and seventy-~~paragraph 1.02 (F), then the three hundred~~ five thousand United States dollars ($~~300,000~~1,275,000) ~~payment due~~ (the “Escrow Shares”) to be held in the ~~Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment,~~ Escrow Fund and ~~a penalty of twenty-five thousand ($25,000) dollars~~ shall be ~~added~~ available to satisfy the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All indemnification obligations of the ~~Purchaser shall accede to the mergee, or any such parent of OAS,~~ Company as ~~if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement~~provided in Section 9 below. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Share Purchase Agreement (Elbit Vision Systems LTD)

Purchase Price. The ~~Purchaser~~ purchase price for Xtal shall be US$25,000,000 (twenty-five million US dollars) (the "Purchase Price"), payable as follows and subject to the following terms and conditions: (a) The Buyer shall initially acquire 90% (ninety percent) of the stock of Xtal or substantially all of the assets of Xtal and specified liabilities of Xtal subject to Seller holding a 10% (ten percent) equity interest in the purchasing entity, under the following payment conditions: (i) US$2,000,000 (two million US dollars) shall be paid in cash within 30 (thirty) days after the execution of this Agreement or on May 31, 2000, whichever date is later, which amount shall be held as a deposit pursuant to the terms hereof and pursuant to an escrow agreement to be executed among Buyer, Seller and a first class bank, acceptable to FCI and Seller, The deposit plus accrued interest is to be paid to Seller or returned to Buyer as provided in Section 10 hereof; (ii) an additional US$8,000,000 (eight million US dollars) shall be paid in cash on the Closing Date, which is to be 60 (sixty) days from the execution of this Agreement or June 30, 2000, whichever date is later; (iii) US$10,000,000 (ten million US dollars) through a promissory note (the "US$10,000,000 Promissory Note") of an equivalent amount bearing interests at the rate of 6% (six percent) per annum calculated from the Closing Date until the date such payment is made, such promissory note to be delivered on the Closing Date; the promissory note shall be payable 180 (one hundred and eighty) days following the Closing Date or on December 31, 2000, whichever date is later (the "maturity date"); provided, however, that the principal amount of such note shall be reduced to US$7,500,000 (seven million, five hundred thousand US dollars) in the event Seller does not deliver to Buyer on the Closing Date an executed non-cancelable 3 (three) year purchase order ("Purchase Order") at prevailing market prices covering a minimum of 50% (fifty percent) of the optical fiber requirements of Seller and/or its affiliated companies and, provided further, that the principal amount of such note shall be reduced to US$9,000,000 (nine million US dollars) (or US$6,500,000 (six million, five hundred thousand US dollars) in the event that the Purchase Order referred to above is not executed by Seller) in the event that the Buyer makes all payments due thereunder on or before August 31, 2000; (iv) in the event that the Buyer does not make the payment due under the promissory note referred to in 2(a)(iii) above by its maturity date, the maturity date shall be extended to the date which is 3 (three) months following the original maturity date or to March 31, 2001, whichever is later (the "extended maturity date"), and, in addition to the original interest rate of 6% (six percent) per annum, the Buyer shall pay an additional interest of 3% (three percent) per month, calculated from the date of extension until the date the promissory note is paid in full; (v) US$1,250,000 (one million, two hundred and fifty thousand US dollars) through a promissory note of an equivalent amount bearing interest at the rate of 6% (six percent) per annum, calculated from the Closing Date until the date such payment is made, such promissory note to be delivered on the Closing Date; such note shall be payable 450 (four hundred and fifty) days following the Closing Date, provided that the principal amount and interest of such promissory note shall be proportionately reduced in the event that Gross Profit of Xtal or the purchasing entity for the year 2000 does not achieve certain levels, as defined on Annex A; and (vi) US$1,250,000 (one million, two hundred and fifty thousand US dollars) through a promissory note of an equivalent amount bearing interest at the rate of 6% (six percent) per annum, calculated from the Closing Date until the date such payment is made, such promissory note to be delivered on the Closing Date; such note shall be payable 810 (eight hundred and ten) days following the Closing Date, provided that the principal amount and interest of such promissory note shall be proportionately reduced in the event that Gross Profit of Xtal or the purchasing entity for the year 2001 does not achieve certain levels, as defined on Annex A. (b) On the date which is 1080 (one thousand and eighty) days following the Closing Date, the Buyer shall, pursuant to the Buyer's Call Option (as described below), acquire all the remaining shares held by Seller in Xtal or in the purchasing entity upon a payment in cash of US$2,500,000 (two million, five hundred thousand US dollars) plus interest at the rate of 6% (six percent) per annum, calculated from the Closing Date until the date such payment is made. The Buyer, notwithstanding anything contained herein to the contrary, reserves the right to prepay this amount at any time without penalty. (c) Notwithstanding the above, the total of the 2 (two) payments due by the Buyer as provided for in Sections 2(a)(v) and (vi) above shall not exceed under any circumstances an amount equal to ~~three million~~ principal amount of US$ 2,500,000 (two million, five hundred ~~sixty~~ thousand ~~dollars~~ US dollars) as increased by accrued interests on such principal amount. Seller shall not be required to make any payments to Buyer under Sections 2(a)(v) and (~~$3,260,000~~vi) above in the ~~following manner: A. The number~~ event that the Gross Profit of ~~common shares of~~ Xtal or the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ purchasing entity is negative for the years 2000 and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable2001. ~~1.) One Hundred Eighty~~ (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.d) In the event that the ~~common stock~~ Buyer fails to comply with any of its payment obligations referred to above, the Buyer shall pay to Seller a penalty of 10% of the ~~issuer is quoted~~ payment due, plus legal and courts fees incurred by Algar in the process of enforcing its rights provided for in the Purchase Agreement. (e) For purposes of this Section 2 "Gross Profit" means the gross profit of Xtal for a specific year determined in accordance with the Generally Accepted Accounting Principles used in Brazil ("Brazilian GAAP") based on the ~~Pink Sheets,~~ conditions and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described assumptions contained in the ~~RRA may also apply.~~ projections attached hereto as Annex B. ~~The Purchaser~~ Seller shall ~~pay sixty thousand dollars ($60,000) in cash,~~ have the right to appoint an independent accountant of its choice to verify and confirm the Gross Profit presented by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing DateXtal. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that ~~the Purchaser, for~~ there is any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability discrepancy in the ~~open market, to be paid to~~ Gross Profit presented by Xtal and the ~~Seller~~ Gross Profit determined by the ~~fifth (5th ) day subsequent~~ independent accountant selected by Seller and that the Gross Profit in either year is lower than as projected due to actions taken by Xtal at the ~~Closing Date~~direction of FCI, its management and/or employees, then the ~~Purchaser~~ parties mutually agree to jointly appoint a third party independent accountant (whose costs, fees and expenses shall ~~immediately file~~ be equally divided between the parties) to make an ~~S-8 registration statement registering such shares for the services~~ independent evaluation of the ~~principals~~ Gross Profit and ~~agents of~~ to evaluate the ~~Seller, as designated solely~~ effect on Gross Profit caused by such actions. The actual Gross Profit shall be adjusted based on the evaluation performed by such independent accountant jointly appointed by the ~~Seller, so as to allow~~ parties disregarding the effects of such ~~shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of~~ actions (the ~~SEC regarding S-8 filings,~~ "Adjusted Gross Profit") and ~~all of the shares so registered~~ such Adjusted Gross Profit shall be ~~for~~ used in determining the ~~payment of services provided~~ payments due pursuant to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (GSection s 2(a)(v) and (Hvi) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Acquisition Agreement (Fibercore Inc)

Purchase Price. ~~The Purchaser shall pay~~ Subject to the ~~Seller~~ terms and conditions contained in this Agreement, the Buyer shall pay, or cause to be paid, to the Seller, by bank wire transfer of immediately available funds to an account designated in writing by the Seller: (a) at the Closing, an amount (the “Closing Payment”) equal to (i) the Base Purchase Price minus (ii) the sum of (A) the Estimated ASC Partnership Receivable, (B) the OPEB Funding Amount and (C) the Business Interruption Premium Amount; and (b) as soon as practicable, and in any event no later than seven days, after the Final Payment Determination Date, an amount (the “Final Payment”) equal to (i) the sum of (A) the Working Capital Overage, if any, (B) the ASC Partnership Receivable Adjustment – Seller, if any, (C) if the Buyer does not deliver a Deferral Notice prior to the Closing, the Pension Funding Amount, if any, the Seller’s Excess Pension Cost, if any, and the Pension Investment Loss, if any, and (D) the Economic Adjustment – Seller, if any, minus (ii) the sum of (A) the Working Capital Underage, if any, (B) the ASC Partnership Receivable Adjustment – Buyer, if any, (C) if the Buyer does not deliver a Deferral Notice prior to the Closing, an amount equal to ~~three million two hundred sixty thousand dollars ($3,260,000) in~~ the ~~following manner: A. The number of common shares~~ sum of the ~~Purchaser~~Excluded Amounts and the Pension Investment Gain, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ if any, and ~~currently quoted on~~ (D) the ~~OTCBB (the "mergee")~~Economic Adjustment – Buyer, ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares)~~if any, subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuanceprovided, however, that, if the ~~market price of~~ Final Payment is a negative number, the ~~issuers common stock, as quoted on the OTCBB~~Seller shall instead pay, or ~~other regional or national stock exchange~~cause to be paid, ~~other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered~~ to the ~~Seller so as~~ Buyer, by bank wire transfer of immediately available funds to ~~constitute~~ an account designated in writing by the Buyer, the absolute value of such amount at such time. For the avoidance of doubt, if the Buyer delivers a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and Deferral Notice prior to the ~~180th day subsequent to the execution of this EPA~~Closing, ~~then four hundred thousand~~ clauses (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (Gi)(C) and (Hii)(C) ~~below. E. The Purchaser~~ above shall ~~issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described~~ not be included in the ~~Money Purchase Contract ("MPC")~~Final Payment, ~~attached herein as Exhibit B~~ but shall instead be included in the determination of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable any payments to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser be made pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions Section 2.6 as set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Sellertherein. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Century Aluminum Co)

Purchase Price. 2.2.1 The ~~Purchaser~~ purchase price (“Purchase Price”) for the sale and purchase of the Hotel shall ~~pay to~~ be the ~~Seller~~ sum of (i) Thirty Two Million Five Hundred Thousand and No/00 Dollars ($32,500,000.00) and (ii) an amount equal to ~~three million two hundred sixty thousand dollars ($3,260,000) in~~ the ~~following manner: A. The number of common shares~~ aggregate of the ~~Purchaser~~balance, ~~convertible into common shares~~ as of ~~a reporting corporation in a current status~~ the Closing Date, of the FF&E reserve account maintained with ~~its SEC filing requirements and currently quoted on~~ respect to the ~~OTCBB~~ Hotel (~~the "mergee")~~such account, ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~an “FF&E Reserve Account”), subject to adjustment ~~based upon a pari pasu conversion into the mergee's shares. All Shares issued~~ for prorations as more particularly determined pursuant to ~~Seller~~ Article 10. 2.2.2 The Purchase Price shall be ~~duly and validly issued~~ payable as follows: 2.2.2.1 On the Contract Date, Purchaser shall deposit into escrow with Escrow Agent the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) (together with all interest that accrues thereon in such escrow, the “Deposit”) by ~~Purchaser~~ wire transfer of immediately available funds. Except as expressly provided herein, the Deposit shall be non-refundable, and shall be ~~fully paid~~ credited to the Purchase Price at Closing. All interest earned on the Deposit while held by Escrow Agent shall be added to and ~~non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ increase the ~~market price~~ amount of the ~~issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares~~ Deposit. The Deposit shall be ~~delivered to the Seller so as to constitute a dollar value~~ held in ~~the 2.)~~ accordance with Section 8.1. In the event ~~that~~ the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of Closing occurs as contemplated by this ~~EPA, and prior to the 180th day subsequent to the execution of this EPA~~Agreement, then ~~four hundred thousand (400,000) additional shares of common stock~~ at Closing, the Deposit shall be ~~issued~~ paid to or at the direction of Seller and ~~delivered by Purchaser or~~ credited against the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also applyPurchase Price. ~~B. The~~ 2.2.2.2 Purchaser shall ~~pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with~~ deliver the ~~payment of pre-closing and closing expenses, for the payment of that portion~~ balance of the Purchase Price ~~representing deposits~~ to ~~secure the Equipment~~Escrow Agent by wire transfer of immediately available funds at Closing, ~~out of the proceeds of any loan or equity arranged~~ and such amount shall be disbursed by ~~the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand~~ Escrow Agent no later than 4:00 p.m. (~~204,000~~Washington, D.C. time) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to on the Closing Date, to ~~arrange for~~ or at the ~~shares described~~ direction of Seller in ~~1.02 (C) above, that are free of any restrictions as~~ accordance with wiring instructions delivered by Seller to ~~their transferability or marketability in~~ Escrow Agent. 2.2.3 If Purchaser shall fail to deliver the ~~open market, to be paid to the Seller~~ Deposit by the ~~fifth (5th ) day subsequent to~~ dates set forth in Sections 2.2.2, time being of the ~~Closing Date~~essence, then ~~the Purchaser~~ notwithstanding any other provision of this Agreement, this Agreement shall ~~immediately file an S-8 registration statement registering such shares for the services~~ thereupon automatically terminate, any portion of the ~~principals and agents of the Seller, as designated solely~~ Deposit then held by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Escrow Agent shall be ~~for~~ returned to Purchaser and neither party shall have any rights against the ~~payment of services provided~~ other with respect to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and ~~conditions described in Sections 1.02 (F)~~provisions of this Agreement, ~~(G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in~~ except for those provisions that expressly survive the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B~~ termination of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Highland Hospitality Corp)

Purchase Price. ~~The Purchaser~~ In consideration for the Transferred Assets and the other obligations of Seller Entities pursuant to this Agreement, at the Closing, Buyer shall assume the Assumed Liabilities and Buyer shall pay to ~~the Seller an amount equal to three million two hundred sixty thousand dollars~~ Holdings ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any ~~other regional or national stock exchange, on the date~~ Affiliate of ~~the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA,~~ Holdings designated by Holdings in writing at ~~any time subsequent to the execution of this EPA, and~~ least two (2) Business Days prior to the ~~180th day subsequent to~~ date such payment is due): (a) at the ~~execution of this EPA~~Closing, ~~then four hundred thousand~~ twelve million Dollars (~~400,000~~$12,000,000) ~~additional shares of common stock shall be issued and delivered by Purchaser or~~ (the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with “Closing Purchase Price”) minus the Closing ~~Date of the EPA~~Customer Deposits Amount (“Closing Consideration”). Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within At least five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent Business Days prior to the Closing Date, Holdings will deliver to ~~arrange for~~ Buyer its good faith estimate of the ~~shares described~~ Closing Customer Deposits Amount, together with reasonable supporting calculations. Holdings will provide Buyer with a reasonable opportunity to review and comment on Holdings’ calculation of the estimated Closing Customer Deposits Amount and will consider in ~~1.02 (C) above~~good faith any comments proposed by ▇▇▇▇▇; provided that Holdings and ▇▇▇▇▇ will negotiate in good faith to resolve any dispute over the estimated Closing Customer Deposits Amount and ▇▇▇▇▇’s approval of the Closing Customer Deposits Amount will be required before the Closing, ~~that are free of any restrictions as to their transferability or marketability in the open market,~~ such approval not to be ~~paid to~~ unreasonably withheld, conditioned or delayed. (b) on the ~~Seller by~~ date that is the ~~fifth (5th ) day subsequent to~~ first anniversary of the Closing Date, ~~then~~ four million three hundred thirty-three thousand three hundred thirty-three Dollars ($4,333,333) (the ~~Purchaser shall immediately file an S-8 registration statement registering such shares for~~ “First Deferred Payment Amount”); (c) on the ~~services~~ date that is the second anniversary of the ~~principals and agents~~ Closing Date, four million three hundred thirty-three thousand three hundred thirty-three Dollars ($4,333,333) (the “Second Deferred Payment Amount”); and (d) on the date that is the third anniversary of the ~~Seller~~Closing Date, ~~as designated solely by~~ four million three hundred thirty-three thousand three hundred thirty-three Dollars ($4,333,333) (the ~~Seller~~“Third Deferred Payment Amount” and, ~~so as to allow such shares to be immediately registered. The shares so registered will be in compliance~~ collectively with ~~all applicable rules of~~ the ~~SEC regarding S-8 filings,~~ First Deferred Payment Amount and ~~all of~~ the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition toSecond Deferred Payment Amount, the ~~terms and conditions described in Sections 1.02 (F~~“Deferred Payment Amounts”)~~, (G) and (H) below~~. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Deluxe Corp)

Purchase Price. The ~~Purchaser~~ purchase price for the Newly Issued Common Units shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Three Million Eight Hundred Sixty Four Thousand Five Hundred Forty One Dollars and No/100 ($~~3,260,000~~3,864,541) in (the ~~following manner: A. The number of common shares~~ “Common Unit Purchase Price”). Two Million Eight Hundred Sixty Four Thousand Five Hundred Forty One Dollars and No/100 ($2,864,541) of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser~~ Common Unit Purchase Price shall be ~~eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject~~ payable by Buyer to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted Company in immediately available funds on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The ~~Purchaser may substitute five hundred ten thousand dollars~~ remaining One Million Dollars ($~~510,000~~1,000,000) of the Common Unit Purchase Price shall be evidenced by a promissory note (the “Buyer’s Note”) in ~~market value,~~ the form attached hereto as of Exhibit “A” to be delivered by Buyer to Company on the ~~date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable~~ Closing Date. The Common Unit Purchase Price to be paid by Buyer to the Company and any additional amounts contributed to the Company at Closing shall be held and utilized by the Company, to the extent necessary, to satisfy Buyer’s conditions to closing set out in Section 5(a)(ii) through (xii) hereof. The purchase price for the GP Interests shall be One Hundred Forty Seven Thousand Nine Hundred and Fifty Nine Dollars and No/100 ($147,959) (the “GP Interest Purchase Price”) which amount shall be payable by Buyer to Seller in ~~lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to~~ immediately available funds on the Closing Date, with the GP Interest Purchase Price then being immediately contributed by Seller to ~~arrange for~~ the ~~shares described in 1.02~~ GP and then by the GP to the Company simultaneously with the Closing (~~C) above~~the Common Unit Purchase Price and the GP Interest Purchase Price, ~~that are free~~ collectively, the “Purchase Price”).” Buyer’s obligations to timely pay the amounts due and payable to Company under the terms of ~~any restrictions as to their transferability or marketability~~ Buyer’s Note will be secured under the terms an escrow agreement, in the ~~open market,~~ form attached hereto as Exhibit “B” (the “Escrow Agreement”) to be ~~paid to the Seller~~ executed by ~~the fifth (5th ) day subsequent to~~ Buyer and Company on the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Securities Purchase and Sale Agreement (Rio Vista Energy Partners Lp)

Purchase Price. Subject to adjustments as set forth below, the purchase price for the Properties shall be Two Million Six Hundred Twenty-Three Thousand Thirty-five and 00/100 Dollars ($2,623,035.00 US) (the "Purchase Price"), which equates to $300/ acre for 8,743.45 net mineral acres, to be paid at Closing as follows: $2,200,000.00 payable in U.S. dollars; and, $423,035.00 payable in shares of Common Stock of Buyer (the "Shares"), the price per share of which shall be calculated by taking the average of the Close or Closing Price ("Close Price") of the Common Stock as posted on the NYSE Amex for a period of twenty (20) business days immediately preceding the date this Agreement is executed by the Parties. The ~~Purchaser~~ shares of Common Stock will be "restricted securities" as that term is defined in Rule 144 of the Securities Act of 1933, as amended (the "Securities Act"). They may be resold only in compliance with Rule 144 or some other exemption from registration under the Securities Act. Seller and Buyer acknowledge that certain consents and approvals are required to issue the Shares, including approval of the NYSE Amex, and that the Shares will not be delivered to Seller on the Closing Date. Buyer shall within five (5) business days after the Closing Date, and in good faith, make application for all necessary consents and approvals to cause the Shares to be delivered to Seller on or before one hundred (120) days, including weekends and holidays, from the Closing Date. This 120 day period shall commence on and include the Closing Date. In the event Buyer is unable to deliver the Shares as required herein due to the inability to secure the necessary consents and approvals, Buyer shall pay to ~~the~~ Seller in U.S. Dollars an amount equal to ~~three million two hundred sixty thousand dollars ($3,260,000) in~~ the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion balance of the Purchase Price ~~representing deposits~~ due to ~~secure~~ Seller ($423,035.00), plus interest at the ~~Equipment~~rate of six percent (6%), ~~out of~~ compounded monthly from the ~~proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser~~ Closing Date, which amount shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to ~~the~~ Seller within five (5) business days after termination of the ~~Closing Date~~120 day period. ~~The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value~~At the time of Closing, as Buyer shall deliver to Seller a Promissory Letter stating the number of Shares to be issued to Seller, the value per share and the method of valuation of such shares. Buyer represents, covenants and warrants that Buyer is an entity subject to the reporting requirements of the ~~date~~ Securities Exchange Act of 1934. Provided Seller meets the ~~closing~~requirements of Rule 144 as heretofore referenced, Seller will not be required to hold the Shares in excess of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two six (726) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on months after the Closing Date ~~a contract providing for such payment to~~ (the ~~Seller and for its obligation to title such manufactured equipment to~~ "Holding Period"). Upon the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any expiration of the ~~terms pursuant~~ Holding Period, Buyer shall provide to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at ~~its~~ Buyer's sole ~~option~~ cost and ~~discretion~~expense, ~~may require~~ an opinion letter from it's attorney which shall permit Seller or Seller's transfer agent to remove the ~~Purchaser to re-execute this EPA~~restricted legend from the Shares, and further Buyer shall provide to Seller such other written consents and authority to permit Seller to freely sell, trade or otherwise dispose of the Shares. Seller represents and warrants that it is not an affiliate, a director, a large shareholder, or has any relationship with Buyer which constitutes a relationship of control or would permit Seller in any way to exercise control over Buyer. Any and all ~~Exhibit documents~~expenses and costs, ~~amendments or addendums~~including attorney fees, ~~as applicable~~associated with Buyer obtaining the requisite consents and approvals to issue the Shares, and ~~any and all ancillary documents pertinent to these transactions described herein, in the name~~ subsequent removal of the ~~mergee reporting corporation~~restricted legend from the Shares, ~~as if that document were~~ shall be borne solely by Buyer, and shall not affect in any way the ~~original document upon which~~ value or valuation of the ~~transactions described herein were based~~Shares to be issued to Seller.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Synergy Resources Corp)

Purchase Price. The ~~Purchaser~~ purchase price (“Purchase Price”) for the Property shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be FIFTEEN MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($~~3,260,000) in the following manner~~15,250,000.00), payable as follows: ~~A. The number~~ (a) Upon the “Opening of ~~common shares~~ Escrow”, as hereafter defined, Buyer shall deposit, or cause to be deposited with Escrow Holder, in cash or certified or bank cashier’s check or confirmed wire transfer of funds, the ~~Purchaser, convertible into common shares~~ sum of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ ONE HUNDRED THOUSAND DOLLARS (~~the "mergee"~~$100,000.00) (“Deposit”), ~~issued by Purchaser shall~~ which Deposit shall, except as otherwise herein provided, be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the applied toward payment ~~of pre-closing and closing expenses, for the payment of that portion~~ of the Purchase Price ~~representing deposits~~ upon the “Close of Escrow” (as hereafter defined). The Deposit shall be invested by Escrow Holder in an interest-bearing account selected by Buyer with all interest accruing thereon paid to ~~secure~~ Buyer upon demand or, at Buyer’s election, credited to the ~~Equipment~~Purchase Price upon the Close of Escrow, ~~out~~ except as otherwise herein provided. If the Close of Escrow fails to occur for any reason other than a default by Buyer, the Deposit plus any accrued interest thereon shall, except as otherwise herein provided, be immediately returned by Escrow Holder to Buyer, and, without waiver of any other rights Buyer may have under this Agreement, this Agreement and the Escrow created pursuant hereto shall be deemed terminated. (b) In addition to the Deposit, Buyer shall also concurrently deposit with Escrow Holder the additional sum of One Hundred Dollars ($100.00) (the “Independent Consideration”). The Independent Consideration shall be non-refundable to Buyer as independent consideration for the rights extended to Buyer under this Agreement. The Independent Consideration shall be released to Seller immediately following Buyer’s deposit of the ~~proceeds~~ Independent Consideration into Escrow. In all instances under this Agreement in which Buyer elects to terminate or is deemed to have terminated this Agreement, Seller shall retain the Independent Consideration. The Independent Consideration shall not be applicable towards the Purchase Price. (c) On the date that is no later than seven (7) business days after “Completion of ~~any loan~~ the Asset” (as hereinafter defined), Buyer shall deposit or ~~equity arranged~~ cause to be deposited with Escrow Holder, in cash or certified or bank cashier’s check or confirmed wire transfer of funds, the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) (“Additional Deposit”), which Additional Deposit shall, except as otherwise herein provided, be applied towards payment of the Purchase Price upon the Close of Escrow. The Additional Deposit shall be invested by Escrow Holder in an interest-bearing account selected by Buyer with all interest accruing thereon paid to Buyer upon demand or, at Buyer’s election, credited to the ~~Purchaser~~ Purchase Price upon the Close of Escrow, except as otherwise herein provided. Should the Close of Escrow fail to occur for any ~~purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as~~ reason other than a default by Buyer, including without limitation Seller’s failure to ~~their transferability or marketability in the open market,~~ satisfy a condition to ~~be paid~~ Buyer’s obligations hereunder and Buyer’s refusal to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Datewaive such failure, then the ~~Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals~~ Additional Deposit and ~~agents of the Seller~~any accrued interest thereon shall, except as ~~designated solely by the Seller~~otherwise herein provided, ~~so as to allow such shares to~~ be immediately ~~registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings~~returned by Escrow Holder to Buyer, and ~~all~~ without waiver of ~~the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing~~ any other rights Buyer may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments have under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at this Agreement and the ~~time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller~~Escrow created pursuant hereto shall be deemed terminated. ~~H. In~~ (d) Upon the ~~event that the payment~~ Close of Escrow, Buyer shall deposit or cause to ~~the Seller cannot~~ be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger deposited with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described hereinEscrow Holder, in the ~~name~~ form of a certified or bank cashier’s check, or a confirmed wire transfer of funds, the balance of the ~~mergee reporting corporation~~Purchase Price, plus such additional funds, if any, as ~~if that document were the original document upon which the transactions described herein were based~~may be required to pay Buyer’s share of prorations and closing costs, as set forth herein.

Appears in 1 contract

Sources: Purchase and Sale Agreement (O'Donnell Strategic Industrial REIT, Inc.)

Purchase Price. (a) The ~~Purchaser~~ consideration paid or payable to Seller by Buyer in exchange for the sale, transfer, assignment and delivery of the Assets, (the "Purchase Price"), shall ~~pay~~ be Three Million Dollars ($3,000,000.00), of which One Hundred Thousand Dollars ($100,000) was previously paid into an escrow account (the "Escrow") by Buyer with CoreStates Bank, N.A. (the "Escrow Agent") pursuant to the ~~Seller~~ terms of an escrow agreement (the "Escrow Agreement"), which amount ~~equal~~ shall be returned to ~~three million two hundred sixty thousand dollars~~ Buyer if the Closing does not occur unless the failure to close results from the breach of this Agreement by Buyer; minus (A) any unpaid amounts due to landlords with respect to the leases of the Stores arising prior to the Closing Date (not including Buyer's share of any Administrative Fees as referred to in section 17(n)); and (B) Fifteen Thousand Dollars ($~~3,260,000~~15,000) per Store lease not assigned to Buyer (excluding the first seven such non-assigned Store leases) by December 31, 1998 on commercially reasonable terms, provided that, notwithstanding anything contained in this Agreement to the contrary, the adjustment pursuant to this clause (B) shall not exceed Ninety Thousand Dollars ($90,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB aggregate (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders adjustments pursuant to the ~~RRA~~immediately preceding clauses (A) and (B) are collectively referred to as the "Lease Assignment Adjustment"). Ninety Thousand Dollars ($90,000) of the Purchase Price shall be paid on June 1, at 1998 for the Initial Stores as provided in Section 7 below. With respect to any Remaining Stores not acquired by Buyer hereunder, Seller shall use its reasonable efforts to provide Buyer with an opportunity to negotiate for the acquisition of such Remaining Stores that Seller or its licensed operators desire to sell or close from time ~~subsequent~~ to time in the future. (b) All funds due Seller under this Agreement or the Escrow Agreement shall be paid by wire transfer to an account designated by Seller, or by certified or bank treasurer's check drawn to the ~~execution~~ order of ~~this EPA~~Seller, ~~and prior~~ as Seller directs. (c) The total of One Hundred Thousand Dollars ($100,000) remaining in Escrow after Closing shall secure Seller's obligations with respect to the ~~180th day subsequent~~ Lease Assignment Adjustment and with respect to the ~~execution~~ payment of ~~this EPA~~Administrative Fees to landlords pursuant to Section 17(n); provided that, when all but thirteen (13) of the landlord consents have been received, then ~~four hundred thousand~~ the Escrow agent shall immediately release to Seller Fifteen Thousand Dollars (~~400,000~~$15,000) ~~additional shares~~ of ~~common stock~~ the escrowed funds for each consent received thereafter; provided further that, to the extent that the Escrow is insufficient to pay to Buyer any amount owing on account of the Lease Assignment Adjustment or such Administrative Fees, Seller and Shareholders shall remain liable for the payment of such amount. Upon the earlier of (i) the assignment of all but seven (7) Store leases and the tender of Seller's share of all such Administrative Fees; or (ii) December 31, 1998, the remaining amount in the Escrow shall be ~~issued~~ released to Buyer and/or Seller in accordance with the foregoing. Seller and ~~delivered by Purchaser or~~ Buyer shall issue joint instructions to the ~~issuer~~Escrow Agent to release to Seller and/or Buyer, as applicable, the Escrow in accordance with this Section 4. If there is a dispute as to such instructions, such dispute shall be resolved in accordance with Section 5. (d) As detailed on Exhibit B, Seller currently intends to dispose of approximately seventeen (17) of its current locations and to sell approximately thirty-one (31) stores to licensed operators that would operate gold-plated jewelry businesses using the ~~Seller immediately following such occurrence~~Names or other names selected by the licensed operators. ~~Such additional Shares issued will bear registration rights pursuant~~ Any of the thirty-one (31) stores currently scheduled to ~~the RRA, or~~ be ~~eligible for exemption from Registration, as if such Shares were issued coincident~~ transferred to licensed operators in accordance with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits preceding sentence which are not ultimately transferred to ~~secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee~~ such licensed operators (the "~~mergee closing shares~~Remaining Stores") shall be disclosed to Buyer in writing by Seller (a (4(d) Notice") promptly upon Seller's becoming aware that ~~are free of~~ any ~~restrictions as~~ such Remaining Store's sale to ~~their transferability or marketability in the open market,~~ a licensed operator is not likely to be ~~paid~~ completed. Buyer shall have the right and option, at Buyer's sole election to ~~the~~ be made by written notice to Seller within ~~five~~ ten (510) business days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaserfollowing Buyer's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.the

Appears in 1 contract

Sources: Asset Purchase Agreement (Piercing Pagoda Inc)

Purchase Price. The ~~Purchaser shall pay to~~ purchase price for the ~~Seller an amount equal to three million~~ Property is Six Million two hundred ~~sixty~~ thousand ~~dollars~~ and 00/100 Dollars ($~~3,260,000~~6,200,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price"), ~~issued by Purchaser shall be eight hundred sixteen thousand~~ payable as follows: (~~816,000~~a) ~~shares~~ a deposit of Fifty Thousand and 00/100 Dollars ($50,000.00) (the "~~mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller~~ Deposit") shall be ~~duly~~ due and ~~validly issued by Purchaser and shall be fully paid and non-assessable. 1.~~payable on or before that date which is three (3) ~~One Hundred Eighty (180)~~ business days ~~from this stock issuance~~following the Effective Date; provided, however, that if the ~~market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets,~~ Deposit is not ~~$2.50 per share, a sufficient number of additional shares shall be~~ delivered to the ~~Seller so~~ Escrowee (as hereinafter defined) by that date which is five (5) business days following the Effective Date, then this Agreement shall automatically terminate and the parties hereto shall be relieved of all further obligations and liability to ~~constitute a dollar value~~ the other. The Deposit shall be held in ~~the 2.)~~ escrow in accordance with the terms hereof, in an interest bearing account. Upon closing of title to the Property ("Closing"), all interest accrued on the Deposit shall be credited to Buyer. In the event that this Agreement is terminated for any reason other than a default by Buyer, all interest accrued on the ~~common stock~~ Deposit shall be paid to Buyer. The Deposit shall be applied against the Purchase Price at Closing subject to the earlier termination of this Agreement as provided herein, in which event the Deposit may be refundable, pursuant to the terms and provisions hereof; and (b) the balance of the ~~issuer is quoted on~~ Purchase Price, in the ~~Pink Sheets~~amount of Six Million One hundred fifty Thousand and 00/100 Dollars ($6,150,000) shall be paid at Closing, subject to the prorations and ~~is not quoted on the OTCBB~~adjustments set forth in this Agreement, by bank check, certified funds, or ~~any other regional or national stock exchange,~~ wire transfer to Seller's designated bank account on the date of ~~the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available~~ Closing. (i) The Deposit shall be drawn to the ~~Shareholders pursuant~~ order of, delivered to and held by Seller's attorney ("Escrowee"), the ~~RRA~~Escrowee shall hold the proceeds thereof in escrow in a special bank account (or as otherwise agreed in writing by Seller, ~~at any time subsequent to~~ Buyer and Escrowee) until the ~~execution~~ Closing or sooner termination of this ~~EPA~~Agreement and shall pay over or apply such proceeds in accordance with the terms of this section. Escrowee will hold such proceeds in an interest-bearing account, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 interest earned thereon shall be paid to the same party entitled to the escrowed proceeds, and the party receiving such interest shall pay any income taxes thereon. The tax identification numbers of the parties are shall be furnished to Escrowee upon request. At the Closing, such proceeds and the interest thereon, if any, shall be paid by Escrowee to Seller. If for any reason the Closing does not occur and either party makes a written demand upon Escrowee for payment of such amount, Escrowee shall give written notice to the other party of such demand. If Escrowee does not receive a written objection from the other party to the proposed payment within 5 business days after the giving of such notice, Escrowee is hereby authorized to make such payment. If Escrowee does receive such written objection within such 5 day period or if for any other reason Escrowee in good faith shall elect not to make such payment, Escrowee shall continue to hold such amount until otherwise directed by written instructions from the parties to this contract or a final judgment of a court. However, Escrowee shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the county in which the Land is located. Escrowee shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. (ii) The parties acknowledge that Escrowee is acting solely as a stakeholder at their request and for their convenience, that Escrowee shall not be deemed to be the agent of either of the parties, and that Escrowee shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this contract or involving gross negligence. Seller and Purchaser shall jointly and severally indemnify and hold Escrowee harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the performance of Escrowee's duties hereunder, except with respect to actions or omissions taken or suffered by Escrowee in bad faith, in willful disregard of this contract or involving gross negligence on the part of Escrowee. (iii) Escrowee has acknowledged agreement to these provisions by signing in the place indicated on the signature page of this contract. (iv) If Escrowee is Seller's attorney, Escrowee or any member of its firm shall be permitted to act as counsel for Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions any dispute as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any disbursement of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, Deposit or any other ~~reporting parent~~ dispute between the parties whether or ~~holding company exercising voting~~ not Escrowee is in possession of the Deposit and continues to act as Escrowee. (v) Escrowee may act or ~~shareholder control over OAS~~ refrain from acting in respect of any matter referred to in this section 2(c) in full reliance upon and with the advice of counsel which may be selected by it (~~hereafter, the "Parent"),~~ including any member of its firm) and shall be fully protected in so acting or refraining from action upon the ~~execution and effectiveness~~ advice of ~~OAS's merger with the mergee, or~~ such ~~Parent~~counsel. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Agreement of Sale (Gales Industries Inc)

Purchase Price. (a) The ~~Purchaser shall pay~~ total consideration paid by Buyer pursuant to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser this Agreement shall be ~~eight hundred sixteen thousand~~ One Hundred Twenty Seven Million Seven Hundred Fifty Thousand U.S. Dollars (~~816,000) shares (the "mergee shares~~US$127,750,000), subject to ~~adjustment based upon a pari pasu conversion into~~ the ~~mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable~~adjustments as provided in Section 2.2 hereof (the “Purchase Price”). 1.(b) One Hundred ~~Eighty~~ Twenty Two Million Seven Hundred Fifty Thousand U.S. Dollars (~~180) days from this stock issuance~~US$122,750,000), if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered subject to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available adjustments to the ~~Shareholders pursuant to the RRA~~Purchase Price as provided in Section 2.2 hereof, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price ~~representing deposits~~ shall be paid by Buyer in the AIMCOR DE Merger (the “AIMCOR DE Merger Consideration”). (c) Five Million U.S. Dollars (US$5,000,000), subject to ~~secure~~ the ~~Equipment~~adjustments to the Purchase Price as provided in Section 2.2 hereof, ~~out~~ of the ~~proceeds of any loan or equity arranged~~ Purchase Price shall be paid by Buyer for the ▇▇▇▇ Transport PSI (the “AIMCOR Securities Consideration”). (d) The Purchase Price shall be payable at the Closing in immediately available funds to such bank accounts as shall be designated by the ~~Purchaser for any purpose~~Seller prior to Closing. ~~C. The Purchaser shall cause two hundred four thousand~~ (~~204,000~~e) ~~common shares~~ In accordance with the terms of the ~~mergee~~ Original Stock Purchase Agreement, the Buyer has deposited with the Seller, in immediately available funds, Three Million Dollars (US $3,000,000) (the ~~"mergee closing shares") that are free~~ “First Deposit”). If the Closing shall have occurred on or prior to December 31, 2003, the amount of the First Deposit and any ~~restrictions as to their transferability or marketability in the open market, to~~ and all earnings accrued thereon shall be ~~paid~~ immediately payable to the Seller and credited against the AIMCOR DE Merger Consideration payable pursuant to Section 2.1(a). If the Closing shall not have occurred on or prior to December 31, 2003, and the Seller is not then in default or breach of any of its representations, warranties, covenants or agreements in this Agreement, which default or breach has caused a failure to satisfy a Closing condition, the First Deposit and any and all earnings accrued thereon shall become immediately and irrevocably payable to the Seller; provided, however, that in such event the Buyer and its affiliates shall be irrevocably released hereby from any claim by Seller (or any of its affiliates) related to the inability of the Seller to claim a loss for U.S. federal income tax purposes on the sale of the Sold Companies for the year ending December 31, 2003. If this Agreement is terminated pursuant to Section 10.1(a) or by Seller pursuant to Section 10.1(e), then in any such event, the First Deposit (and all earnings thereon) shall immediately and irrevocably either be (x) credited against any amounts which may be payable by Buyer to Seller as of such termination date or (y) payable to Buyer, as applicable. The First Deposit shall be invested by the Seller in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $500 million. The First Deposit and any and all earnings accrued thereon shall be segregated from other funds held by the Seller. (f) In addition, if the Closing shall not have occurred on or prior to December 31, 2003, the Buyer shall deposit with the Seller within ~~five~~ three business days thereafter, in immediately available funds, an additional Three Million Dollars (5US $3,000,000) ~~days~~ (the “Second Deposit”). If the Closing shall have occurred on or prior to July 2, 2004, the amount of the Second Deposit and any and all earnings accrued thereon shall be immediately payable to the Seller and credited against the AIMCOR DE Merger Consideration payable in accordance with Section 2.1(a). If the Closing shall not have occurred on or prior to July 2, 2004 as a result of a failure to obtain all required consents and approvals in accordance with Section 5.3 hereof, the Second Deposit and any and all earnings accrued thereon shall become immediately and irrevocably payable to the Seller; provided that, if (i) the Buyer has complied in all respects with its obligations and undertakings in accordance with Section 5.3 hereof or (ii) the Seller has not complied in all respects with its obligations and undertakings in accordance with Section 5.3 hereof, then, in either case the amount of the Second Deposit and any and all earnings accrued thereon shall be immediately and irrevocably payable to the Buyer. The Second Deposit shall be invested by the Seller in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $500 million. The Second Deposit and any and all earnings accrued thereon shall be segregated from other funds held by the Seller. (g) In addition to all other amounts payable by Buyer to Seller under this Agreement, the Buyer shall pay the Seller Eighteen Thousand U.S. Dollars (US$18,000) per day for each day from and including November 7, 2003 to but not including the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, Such payments shall ~~fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability~~ be made in the ~~open market,~~ same manner as the Purchase Price is to be paid ~~to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals~~ and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid on the earlier to occur of the ~~Seller in a manner identical to, and in addition to,~~ Closing Date or the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in second business day after the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B~~ termination of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase Agreement and Plan of Merger (Walter Industries Inc /New/)

Purchase Price. 2.1 The purchase price to be paid by Purchaser ~~shall pay~~ to Seller for the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property (the “Purchase Price”) is EIGHTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares18,500,000.00), subject to adjustment ~~based upon a pari pasu conversion into the mergee's shares~~as otherwise provided under this Agreement. ~~All Shares issued to Seller~~ The Purchase Price shall be ~~duly and validly issued~~ paid by Purchaser as follows: 2.1.1 No later than three (3) Business Days following the Effective Date, and ~~shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock,~~ as ~~quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share,~~ a ~~sufficient number of additional shares shall be delivered~~ condition to the ~~Seller so as~~ effectiveness hereof (TIME BEING OF THE ESSENCE with respect to ~~constitute a dollar value~~ such date), Purchaser shall deliver to First American Title Insurance Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ (“Escrow Agent”) an amount equal to TWO hundred thousand AND NO/100 DOLLARS ($200,000.00) (together with any interest earned thereon, the “Initial Deposit”) by wire transfer of immediately available funds, to be held in ~~the~~escrow in accordance with Article 19; ~~2.)~~ 2.1.2 In the event ~~that~~ Purchaser does not terminate this Agreement on or before the ~~common stock~~ Due Diligence Date (as hereinafter defined) in accordance with the terms hereof, no later than three (3) Business Days following the Due Diligence Date (TIME BEING OF THE ESSENCE with respect to such date), Purchaser shall deliver to Escrow Agent an additional deposit in the amount of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) (together with any interest thereon, the ~~issuer is quoted on the Pink Sheets~~“Additional Deposit”, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident collectively with the ~~Closing Date of~~ Initial Deposit, the ~~EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000~~“Deposit”) ~~in cash,~~ by wire ~~transfer, coincident with the payment~~ transfer of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open marketimmediately available funds, to be ~~paid to the Seller within five~~ held in escrow in accordance with Article 19; and 2.1.3 Purchaser shall, on or before 12:00 p.m. (5Eastern Time) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to on the Closing Date, deliver to ~~arrange for~~ Escrow Agent by wire transfer of immediately available funds an amount equal to (i) the ~~shares described in 1.02~~ Purchase Price as apportioned, adjusted and prorated pursuant to Article 7 or as otherwise provided under this Agreement less (Cii) ~~above, that are free~~ the amount of the Deposit plus (iii) any ~~restrictions as to their transferability or marketability in the open market,~~ other amounts required to be paid by Purchaser at the Closing. 2.2 On the day after the Due Diligence Date, the Deposit shall become non-refundable; provided, however, that the Deposit shall be refundable to Purchaser if Purchaser terminates this Agreement in accordance with the provisions of this Agreement which expressly provide for the return of the Deposit to Purchaser upon such termination. In any instance where the Deposit is to be returned to Purchaser, Purchaser shall be entitled to a refund of only so much of the Deposit that has been delivered to Escrow Agent pursuant to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. ~~F. The~~ 2.3 At the Closing, Escrow Agent shall disburse the Purchase Price apportioned, adjusted and prorated to reflect closing costs, prorations and other adjustments made pursuant to Article 7 to Seller as Seller may direct or in accordance with a closing statement prepared and approved by Seller and Purchaser. 2.4 Seller and Purchaser ~~shall issue cash payment totaling three~~ mutually agree that one hundred ~~thousand dollars~~ percent (~~$300,000), by wire coincident with Purchaser's receipt~~ 100%) of ~~such funds as described herein, emanating from~~ the ~~first sales contract(s) payable~~ Purchase Price is attributable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaserreal property. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Franchise Group, Inc.)

Purchase Price. The ~~Purchaser shall pay~~ purchase price to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued be paid by Purchaser ~~shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject~~ to ~~adjustment based upon~~ each Seller for a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, Property or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuerJV Interest, as applicable, is listed in the column labeled "Purchase Price" in Exhibit A (the "Purchase Price)." The applicable Purchase Price shall not be payable to the ~~Seller~~ extent a Property or JV Interest is deleted from Exhibit A in accordance with the provisions of Sections 5(d), 6(a)(iii), 8(a), 8(d), 14 or 15(a). The Purchase Prices shall be payable as follows: (a) Five Million Dollars ($5,000,000.00) (the "Initial Deposit"), simultaneously with the execution and delivery of this Agreement, and as a condition precedent to the effectiveness of this Agreement, by a bank wire transfer of immediately ~~following such occurrence~~available funds to an account designated by Title Company. The Initial Deposit shall be held and disbursed by Title Company in accordance with the terms of this Agreement, and shall be non-refundable except as expressly provided in this Agreement. (b) Within two (2) business days after receipt of notice by Purchaser from Sellers that the condition specified in Section 8(a)(i) has been satisfied, Purchaser shall deposit with the Title Company, by a bank wire transfer of immediately available funds, the additional sum of Ten Million Dollars ($10,000,000.00) (the "Additional Deposit"). Such ~~additional Shares issued~~ Additional Deposit shall be deposited in the account containing the Initial Deposit. The Initial Deposit and the Additional Deposit and all interest earned thereon shall hereinafter collectively be referred to as the "Deposit." The Deposit shall be non-refundable except as expressly provided in this Agreement and shall be held and delivered by Title Company in accordance with the provisions of Section 18. Except as expressly otherwise set forth in this Agreement, the Deposit shall be applied against the Purchase Prices on the Closing Date. It is understood that if Purchaser is permitted to terminate this Agreement with respect to all of the Properties and JV Interests, the Deposit shall be returned to Purchaser. (c) At Closing, Purchaser will ~~bear registration rights pursuant~~ assume the debt on each Property outstanding as of the Closing Date, or take title to a JV Interest in a Property subject to such debt, and such debt will reduce the Purchase Price for each Wholly-Owned Property on a dollar for dollar basis, and for each JV Interest by 50% of the outstanding debt (it being understood and agreed that the outstanding debt amounts shown on Exhibit A next to the ~~RRA~~JV Properties reflect one-half of the debt outstanding as of the date specified). On the Closing Date, or Exhibit A shall be ~~eligible for exemption from Registration,~~ updated to reflect the outstanding debt as ~~if such Shares were issued coincident with~~ of the Closing Date and the equity remaining in each Property. The amounts on Exhibit A related to the Joint Ventures when updated will also be net of the ~~EPA~~JV Partner's interest. ~~Other penalties or sanctions described in~~ If Purchaser pays off a mortgage loan at Closing, Purchaser shall be given credit therefor as if Purchaser had assumed the ~~RRA may also apply~~loan at Closing. B. (d) The ~~Purchaser shall pay sixty thousand dollars ($60,000) in cash~~balance of the Purchase Price, by bank wire ~~transfer~~transfer of immediately available funds to Title Company's account on or before the Closing Date, ~~coincident with~~ subject to the ~~payment of pre-closing~~ prorations and ~~closing expenses~~adjustments set forth in subsection (f) below, Section 3 or as otherwise provided under this Agreement, plus any other amounts required to be paid by Purchaser to any Seller at Closing, and less any amounts to be paid by any Seller to Purchaser at Closing. (e) At Closing, the Purchase Price for ~~the payment of that~~ each Property shall be allocated between Personal Property and real property as follows. The portion of the Purchase Price ~~representing deposits~~ allocated to ~~secure~~ the ~~Equipment, out~~ Personal Property shall be the tax basis for such Personal Property listed on Sellers' books. The remainder of the ~~proceeds of any loan or equity arranged by~~ Purchase Price for such Property shall be allocated to the ~~Purchaser~~ Parcel, Building and Improvements. The current tax basis listed on Sellers' books for ~~any purpose~~the Personal Property is listed on Schedule 1(e), which Schedule shall be updated at Closing. ~~C. The Purchaser shall cause two hundred four thousand~~ (~~204,000~~f) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event the aggregate Net Operating Income shown on the revised financial statement for the Properties for the twelve (12) months ending December 31, 2002 provided pursuant to Section 6(a)(i)(E) is less than the aggregate Net Operating Income shown in the third column captioned "NOI" on the projected financial statement for the Properties for such period captioned "2002 Multifamily Portfolio Roll-Up, 11 month Actual and December Forecast" attached hereto as a part of Schedule 6(a)(i)(E) by more than 1%, the aggregate Purchase Price shall be reduced, based on a capitalization rate of 7.95%. In that circumstance, Exhibit A shall be updated to reflect the allocation of the new Purchase Prices amongst the Properties and JV Interests. As used herein, "Net Operating Income" shall mean the Net Operating Income for Properties listed in the "Wholly Owned" column of Exhibit A, as shown on PREIT's "Blue Book Income Statements" as of December 31, 2002, shall be determined on a modified accrual basis in accordance with PREIT's standard accounting policies and practices, copies of the capitalization policies of which have been made available to Purchaser, ~~for any reason~~and shall equal gross potential apartment rental income, ~~shall fail~~less vacancy and allowances, ~~within seventy-two (72) days subsequent to~~ less employee's quarters discounts, less model units and other adjustments, plus net commercial rents, plus other income, less property maintenance expenses, less administrative expenses, less insurance expense, less real estate and miscellaneous taxes, less bad debt expenses and less other expenses. In addition, the ~~Closing Date, to arrange~~ results for the ~~shares described in 1.02 (C) above, that are free of any restrictions~~ Regency Apartments shall be stated as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering if PREIT wholly owned such ~~shares~~ apartment complex for the ~~services~~ entire year, and will include the third party management fee for the ten (10) month period during which PREIT jointly owned such Property. Net Operating Income with respect to a Property which is owned by a Joint Venture consists of the ~~principals~~ same component entries except that it includes a management fee expense, is calculated in accordance with the accounting policies and ~~agents of the Seller, as designated solely~~ practices adopted by ~~the Seller, so as to allow~~ such ~~shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings~~Joint Venture, and ~~all of the shares so registered shall be for the payment of services provided~~ has been adjusted to ~~Purchaser. Should Purchaser qualify for an S-3 registration filing,~~ reflect Sellers' percentage interest in such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) belowJoint Venture. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)

Purchase Price. ~~The~~ As consideration for the sale of the Assets to the Purchaser (collectively, the "Purchase Price"): the Purchaser shall pay to the ~~Seller an amount~~ Seller, by wire transfer of immediately available funds, a total of One Million Seven Hundred Fifty-Three Thousand Five Hundred Ten Dollars (US $1,753,510) equal to ~~three million two hundred sixty thousand dollars~~ the amount of One Million Eight Hundred Thousand Dollars (US $~~3,260,000~~1,800,000) in less the ~~following manner: A. The number~~ amount of ~~common shares~~ unpaid vacation and sick time as of the Closing Date accrued by Seller as set forth in Part 1.2(a)(i) of the Disclosure Schedule, attributable to the employees set forth in such Schedule (which employees have elected to carry over such accrued time with the Purchaser~~, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ ) (the "~~mergee~~Accrued Time")~~, issued by~~ ; the Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered issue to the ~~Seller so as to constitute a dollar value in the 2.) In the event that the~~ Seller, 1,569,823 shares of common stock of the ~~issuer is quoted on~~ Purchaser; the ~~Pink Sheets~~Purchaser shall cause to be deposited the sum of Two Hundred Thousand Dollars (US $200,000) and 163, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional 724 shares of common stock of the Purchaser (together with any funds substituted for shares therein in accordance with the Escrow Agreement, the "Escrow Fund") in an escrow account (the "Escrow Account") to be established as of the Closing Date (as defined below) pursuant to an Escrow Agreement among the Seller, the Purchaser and State Street Bank and Trust Company of California, N.A. (the "Escrow Agent"), in substantially the form of Exhibit B hereto (the "Escrow Agreement"); and at the Closing, the Purchaser shall ~~be issued~~ assume the Assumed Liabilities. For purposes of this Agreement "Assumed Liabilities" shall mean only (i) such warranty and ~~delivered by Purchaser or the issuer, as applicable~~support obligations with respect to existing Dialog Server Product Business customers, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, extent not required to be ~~paid to the~~ discharged by Seller ~~within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value,~~ as of the ~~date~~ Closing, under such Seller Contracts listed in Part 1.2(b) of the ~~closing~~Disclosure Schedule and (ii) the Accrued Time, of and shall not include any ~~registered shares~~other Liabilities; provided, ~~or shares exempt from registration~~further, ~~of another corporation acceptable~~ that notwithstanding the foregoing, and notwithstanding anything to the ~~Seller~~ contrary contained in ~~lieu of~~ this Agreement, the ~~mergee's closing shares. D. In the event that the Purchaser~~"Assumed Liabilities" shall not include, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then and the Purchaser shall ~~immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as~~ not assume or be required to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or perform any other ~~reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent~~Liability that is not referred to specifically in this Section 1.2(b) as an Assumed Liability. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Actionpoint Inc)

Purchase Price. The purchase price for the Membership Interests shall be the aggregate amount of $700,000 (the “Purchase Price”), subject to adjustments pursuant to the terms of this Agreement. As consideration for the purchase and sale of the Membership Interests from Sellers pursuant to Section 1.1, the Purchaser shall pay the Purchase Price as follows. (a) at Closing, the Purchaser (and the Parent, as applicable) shall pay and deliver the following: (i) $155,014.40 in cash (the “Closing Date Cash Consideration”), by wire transfer of immediately available funds, delivered to the ~~Seller an amount~~ Company in accordance with the wire transfer instructions attached hereto as Annex C, which shall be paid by the Company to each of the Sellers in accordance with their Percentage Interest (except for ▇▇▇▇▇, who shall receive a cash payment in accordance with his Percentage Interest multiplied by two); and (ii) the number of restricted Parent Shares that is equal to ~~three million two hundred sixty thousand dollars~~ $194,985.60 divided by the Current Market Price (~~$3,260,000~~the “Closing Date Consideration Shares”), which shall be delivered by Direct Registration System (DRS) advices registered to each the Sellers except ▇▇▇▇▇ in accordance with their Percentage Interest and the ~~following manner: A. The number~~ registration instructions attached hereto as Annex D, each of ~~common shares~~ which shall be delivered to the Sellers’ Representative for and on behalf of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted~~ applicable Seller; (b) on the ~~OTCBB~~ date that is one year after the Closing Date (the ~~"mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~“Holdback Payment Date”), subject to adjustment ~~based upon a pari pasu conversion into~~ pursuant to Section 2.3 and Article 8, the ~~mergee's shares. All Shares issued~~ Purchaser (and the Parent, as applicable) shall pay and deliver the following (collectively, the “Holdback”): (i) $155,014.40 in cash (the “Holdback Cash Amount”), by wire transfer of immediately available funds, delivered to ~~Seller~~ the Sellers’ Representative in accordance with the wire transfer instructions attached hereto as Annex C, which shall be ~~duly and validly issued~~ paid by ~~Purchaser and~~ the Sellers’ Representative to each of the Sellers in accordance with their Percentage Interest (except for ▇▇▇▇▇, who shall receive a cash payment in accordance with his Percentage Interest multiplied by two); and (ii) the number of restricted Parent Shares that is equal to $194,985.60 (the “Holdback Consideration Shares Base Amount”) divided by the Current Market Price as of the Holdback Payment Date (the “Holdback Consideration Shares”), which shall be ~~fully paid~~ delivered by Direct Registration System (DRS) advices registered to the Sellers except ▇▇▇▇▇ in accordance with their Percentage Interest and ~~non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance~~the registration instructions attached hereto as Annex D, ~~if the market price~~ each of ~~the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares~~ which shall be delivered to the ~~Seller so as to constitute a dollar value in the 2.) In the event that the common stock~~ Sellers’ Representative for and on behalf of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Equity Purchase Agreement (Siyata Mobile Inc.)

Purchase Price. (1) The consideration payable by the Purchaser ~~shall pay~~ to the ~~Seller~~ Vendor for the Purchased Shares at Closing shall be an amount equal to ~~three million two hundred sixty thousand dollars~~ $193,000,000 and US$1,000,000 (~~$3,260,000~~collectively, the “Purchase Price”). (2) ~~in the following manner~~The Purchase Price shall be paid and satisfied as follows: A. (a) the assumption of an aggregate of US$1,000,000 in outstanding debts of MMJ International, Marigold Acquisitions and MMJ Colombia owing to the Vendor; (b) as to the balance of the Purchase Price, by the issuance to the Vendor of an aggregate of 15,678,310 Consideration Shares, to be issued, registered and delivered as so directed by the Vendor in writing. The ~~number~~ Consideration Shares shall be issued at a deemed share price of $12.31, being the volume weighted average price of the common shares of ~~the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted~~ Aphria as traded on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price facilities of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, TSX for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) 20 trading days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of preceding the date of this Agreement. ~~L. The Seller~~(3) Purchaser hereby agrees that it will jointly elect with the Vendor, ~~at its sole option~~ upon request by the Vendor, under subsection 85(1) of the Tax Act (and ~~discretion~~any corresponding provincial provision), ~~may require~~ in respect of the transfer of the Purchased Shares pursuant to this Agreement for consideration that includes the Consideration Shares. In the event the Vendor wishes to make such an election, Vendor will prepare the election form(s) and Purchaser agrees to provide Vendor all necessary information to complete the election form(s) on a timely basis. Vendor will provide the Purchaser ~~to re-execute this EPA~~with a properly completed election form(s) for execution within 120 days after the Closing Date, and ~~any~~ the Purchaser shall, within 30 days after receiving the completed election form(s), sign and ~~all Exhibit documents, amendments or addendums, as applicable~~return the election form(s) to the Vendor for filing with the Canada Revenue Agency. The Vendor shall be responsible for filing such form in accordance with subsection 85(6) of the Tax Act. The Vendor shall be entitled to determine the “elected amount” within the limits set out by the Tax Act. The Vendor shall be solely responsible for the correct completion and proper filing of such election form, and Purchaser shall have no any ~~and all ancillary documents pertinent to these transactions described herein~~responsibility or liability in this regard. Notwithstanding the foregoing, in any failure on the ~~name~~ part of the ~~mergee reporting corporation, as if that document were~~ Vendor to provide a completed election form(s) to Purchaser within 120 days after the ~~original document upon which~~ Closing Date shall not constitute a waiver of Vendor’s intent to file a section 85(1) election or of Purchaser’s obligation to assist with the ~~transactions described herein were based~~completion of such election form on a timely basis.

Appears in 1 contract

Sources: Share Purchase Agreement (Aphria Inc.)

Purchase Price. The purchase price (hereinafter referred to as the “Purchase Price”) for the Property is Thirty Six Million and 00/100 Dollars ($36,000,000.00). Subject to all prorations and adjustments provided herein, the Purchase Price shall be paid as follows: A. Within one (1) business day after the Effective Date, Purchaser shall pay to Commonwealth Land Title Insurance Company (the “Escrow Agent”) Ten Thousand and 00/100 Dollars ($10,000.00) by wire-transfer, such amount to be deposited in an interest-bearing account with a national bank whose deposits are insured by the FDIC and which has an office in Palm Beach County, Florida (such $10,000.00, together with all interest earned thereon, is hereinafter referred to as the “Initial Deposit”). At the time of satisfaction of the condition precedent set forth in Section IX A hereof, and conditioned upon such satisfaction, Purchaser shall pay to the ~~Seller an~~ Escrow Agent by wire-transfer Nine Hundred Ninety Thousand and 00/100 Dollars ($990,000.00), such amount to be deposited in the same interest-bearing account as was deposited the Initial Deposit (such $990,000.00, together with all interest earned thereon, is hereinafter referred to as the “Subsequent Deposit”). The Initial Deposit and the Subsequent Deposit are hereinafter collectively referred to as the “Deposit”. The Deposit shall be applied toward the Purchase Price due at Closing or otherwise shall be applied as elsewhere provided in this Agreement. B. An amount equal to ~~three million two hundred sixty thousand dollars~~ the outstanding principal balance on the Closing Date of the “First Mortgage Loan” (~~$3,260,000~~hereinafter defined), shall be paid by Purchaser’s assuming the First Mortgage Loan. As used herein, the term First Mortgage Loan shall mean the mortgage loan secured by the Property and evidenced by the following: (i) that certain Promissory Note dated November 6, 2001, in the ~~following manner~~original principal face amount of $21,000,000.00, executed by Seller in favor of State Farm Life Insurance Company (“Lender”) (the “First Note”); and (ii) that certain Mortgage and Security Agreement, dated November 6, 2001, executed by Seller in favor of Lender, recorded in Book 13074, page 0805, et seq., of the Official Records of Palm Beach County, Florida, together with that certain Assignment of Rents and Leases also dated November 6, 2001, executed by Seller in favor of Lender, recorded in Book 13074, page 0841, et seq., aforesaid records, together with UCC Financing Statements and other documents executed by Seller in favor of Lender (hereinafter collectively referred to as the “First Mortgage Loan”). C. At the Closing, Escrow Agent shall pay the Deposit to Seller as a part of the Purchase Price, and the balance of the Purchase Price which is equal to the Purchase Price less the amount of the Deposit and less the principal amount outstanding under the First Note on the Closing Date shall be paid by Purchaser to Seller by wire-transfer of funds immediately available to Seller. (i) The Escrow Agent joins in the execution of this Agreement solely for the purpose of acknowledging and agreeing to the provisions of this Section II D. (ii) The duties of the Escrow Agent shall be as follows: A. (a) During the term of this Agreement, the Escrow Agent shall hold and disburse the Deposit in accordance with the terms and provisions of this Agreement. (b) The ~~number of common shares~~ Escrow Agent shall pay the Deposit in accordance with the joint written instructions of the Seller and the Purchaser in any of the following events: (1) if this Agreement shall be terminated by the mutual written agreement of Seller and Purchaser, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ or (2) if the ~~OTCBB (the "mergee"), issued by Purchaser~~ Escrow Agent shall be ~~eight hundred sixteen thousand (816,000) shares (~~unable to determine at any time to whom the ~~"mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall~~ Deposit should be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBBpaid, or ~~other regional or national stock exchange, other than~~ (3) if a dispute shall develop between Seller and Purchaser concerning to whom the ~~Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall~~ Deposit should be ~~delivered to the Seller so as to constitute a dollar value in the 2.)~~ paid. In the event that the ~~common stock~~ joint written instructions shall not be received by the Escrow Agent within ten (10) days after the Escrow Agent has served a written request for instructions upon Seller and Purchaser, then the Escrow Agent shall have the right to pay the Deposit into any court of competent jurisdiction and interplead Seller and Purchaser in respect thereof, and thereupon the Escrow Agent shall be discharged of any obligations in connection with this Agreement. (c) Subject to Section II D (ii) (k) hereof, if costs or expenses are incurred by the Escrow Agent in its capacity as Escrow Agent because of litigation or a dispute between the Seller and Purchaser arising out of the ~~issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date~~ holding of the ~~effectiveness~~ Deposit in escrow, Seller and Purchaser shall each pay the Escrow Agent one-half of such reasonable costs and expenses. Except for such reasonable costs or expenses, no fee or charge shall be due or payable to the ~~first registration~~ Escrow Agent for its services as Escrow Agent. (d) By joining herein, the Escrow Agent undertakes only to perform the duties and obligations imposed upon the Escrow Agent under the terms of this Agreement and expressly does not undertake to perform any of the ~~mergee shares~~other covenants, terms and provisions incumbent upon the Seller and the Purchaser hereunder. (e) Purchaser and Seller hereby agree and acknowledge that the Escrow Agent assumes no liability in connection herewith except for negligence or willful misconduct; that the Escrow Agent shall never be responsible for the validity, correctness or genuineness of any document or notice referred to under this Agreement; and that in the event of any dispute under this Agreement, the Escrow Agent may seek advice from its own counsel and shall be fully protected in any action taken by it in good faith in accordance with the opinion of its counsel. (f) All investments by Escrow Agent will be made in the regular course of business. To be entitled to same day investment (assuming good funds are provided), the Deposit must be received by noon; otherwise, such funds will be deposited on the next business day. All investments shall be subject to the rules, regulations, policies and procedures of the bank depository in which such monies are deposited. (g) Purchaser hereby certifies to Escrow Agent that Purchaser’s federal tax identification number is _____________. (h) The Deposit may be processed for collection in the normal course of business by Escrow Agent, which may commingle funds received by it with escrow funds of others in its regular escrow account at a national bank having an office in Palm Beach County, Florida, of Escrow Agent’s choosing (the “Depository”). Escrow Agent shall not be accountable for any incidental benefit which may be attributable to the funds so deposited. Escrow Agent shall not be liable for any loss caused by the failure, suspension, bankruptcy or dissolution of the Depository. (i) Escrow Agent shall not be liable for loss or damage resulting from: (i) any good faith act or forbearance of Escrow Agent; (ii) any default, error, action or omission of any party, other than Escrow Agent; (iii) any defect in the title to any property; (iv) the expiration of any time limit or other delay which is not caused by the failure of Escrow Agent to proceed in its ordinary course of business, and in no event where such time limit is not disclosed in writing to the Escrow Agent; (v) the lack of authenticity of any writing delivered to Escrow Agent or of any signature thereto, or on the ~~date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution~~ lack of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date authority of the ~~EPA. Other penalties or sanctions described in the RRA may also apply.~~signatory to sign such writing; ~~B. The Purchaser shall pay sixty thousand dollars~~ (~~$60,000~~vi) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in Escrow Agent’s compliance with all ~~applicable rules~~ attachments, writs, judgments, or other legal process issued out of any court; (vii) Escrow Agent’s assertion or failure to assert any cause of action or defense in any judicial or administrative proceedings; or (viii) any loss or damage which arises after the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller Deposit has been disbursed in ~~a manner identical to, and in addition to,~~ accordance with the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. ~~F. The Purchaser~~ (j) Escrow Agent shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured be fully indemnified by the ~~Purchaser. Purchaser shall (1) provide to~~ parties hereto, except in the ~~Seller on the Closing Date a contract providing~~ case of Escrow Agent’s gross negligence, for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its ~~equipment sold~~ expenses, costs, and reasonable attorney’s fees incurred in connection with any interpleader action which Escrow Agent may file to ~~that contract purchaser pursuant~~ resolve any dispute as to ~~its contract. Seller shall have no liability whatsoever for~~ the Deposit, or which may be filed against the Escrow Agent. (k) If Escrow Agent is made a party to any judicial, non-judicial or administrative action, hearing or process based on acts of any of the ~~terms pursuant~~ other parties hereto and not on the malfeasance and/or negligence of Escrow Agent in performing its duties hereunder, the expenses, costs and reasonable attorney’s fees incurred by Escrow Agent in responding to ~~the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot~~ such action, hearing or process may be ~~made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate~~ deducted from the ~~next subsequent sale of~~ funds held hereunder and the party/parties whose alleged acts are a basis for such ~~manufactured equipment by the Purchaser to its contract purchaser(s)~~proceedings shall indemnify, ~~at its next delivery of such equipment~~save and hold Escrow Agent harmless from said expenses, costs and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Sellerfees so incurred. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Sales Contract (Roberts Realty Investors Inc)

Purchase Price. (a) The ~~Purchaser shall pay to~~ purchase price for the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is FORTY-ONE MILLION FIVE HUNDRED THOUSAND 00/100 DOLLARS ($~~3,260,000~~41,500,000.00) ~~in the following manner~~("PURCHASE PRICE"). (b) The Purchase Price shall be payable as follows: ~~A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ (~~the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~i) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to Upon the execution of this ~~EPA~~Agreement, ~~and prior~~ ONE MILLION TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($1,250,000.00) ("INITIAL DOWNPAYMENT"), by Purchaser's check, evidencing good funds, subject to collection, payable to the ~~180th day subsequent~~ order of "Brown, Rudnick, Freed & Gesmer, P.C., as escrow agent" ("ESCROW AGENT") or by wire transfer of immediately available federal funds to an account or accounts to be designated in writing by Escrow Agent. (ii) Unless on or before April 6, 2000, Purchaser has delivered to Seller a copy of a Financing Commitment (hereinafter defined), then on April 7, 2000, Purchaser shall deliver to Escrow Agent SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($750,000.00) ("ADDITIONAL DOWNPAYMENT") by Purchaser's check, evidencing good funds, subject to collection, payable to the ~~execution~~ order of Escrow Agent, or by wire transfer of immediately available federal funds to an account or accounts to be designated in writing by Escrow Agent following the written request of Purchaser. Notwithstanding the foregoing, Seller and Purchaser agree and acknowledge that Purchaser's purchase of the Property is not subject to, or conditioned upon, Purchaser obtaining financing for such purchase, including, without limitation, Purchaser obtaining a Financing Commitment or the ultimate funding of a Financing Commitment. Seller and Purchaser further agree and acknowledge that the provisions of this ~~EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable,~~ Agreement related to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date Financing Commitment are made a part of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, this Agreement so as to ~~allow such shares~~ enable Seller to ~~be immediately registered. The shares so registered will be in compliance with all applicable rules~~ evaluate Purchaser's ability to consummate the purchase of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) belowProperty. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Contract of Sale (Praecis Pharmaceuticals Inc)

Purchase Price. ~~The Purchaser~~ (a) Subject to the charges and prorations set forth in Section 12 of this Agreement, Buyer shall pay to Seller at Closing (as hereinafter defined) the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ sum of Forty Four Million Three Hundred Thousand and No/100 Dollars ($~~3,260,000~~44,300,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price") for the purchase of the Property. The Purchase Price shall be payable in cash or other immediately available United States funds. (b) Within four (4) business days after this Agreement is executed by Buyer and Seller, Buyer shall deposit with Escrow Agent (as hereinafter defined) the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) (the "Initial Deposit") by check or wire transfer of immediately available funds. The sum of Twenty Thousand and No/100 Dollars shall become non-refundable at 5:00 p.m. Chicago time on September 30, 2004 ("Nonrefundable Deposit"), ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (~~except in the event of a "~~mergee shares), subject to adjustment based upon~~ Damage" or "Taking" as defined in Section 10 of this Agreement or a ~~pari pasu conversion into the mergee's shares~~Seller default as further described herein. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that Buyer terminates this Agreement on any day which is after September 30, 2004 and on or before the ~~common stock~~ expiration of the ~~issuer is quoted on~~ Due Diligence Period in accordance with Section 5(b) below the ~~Pink Sheets, and is not quoted on~~ Initial Deposit (minus the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000Nonrefundable Deposit) ~~additional shares of common stock~~ shall be ~~issued and delivered by Purchaser or the issuer, as applicable,~~ immediately returned to ~~the Seller immediately following such occurrence~~Buyer. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that Buyer terminates this Agreement before 5:00 p.m. Chicago time on September 30, 2004 in accordance with Section 5(b) below, the ~~Purchaser~~Deposit (including the Nonrefundable Deposit) shall be immediately returned to Buyer. The Initial Deposit, ~~for~~ Nonrefundable Deposit and any ~~reason, shall fail, within seventy-two (72) days subsequent~~ interest earned thereon is referred to hereinafter as the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services "Deposit". Upon expiration of the ~~principals and agents of~~ Due Diligence Period, the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Deposit shall be ~~for~~ non-refundable to Buyer, unless otherwise provided herein. Pursuant to joint order escrow instructions, the ~~payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for~~ Escrow Agent shall hold the ~~S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000~~ Deposit which shall be ~~paid to the Seller~~ placed in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), an interest-bearing account if directed by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the PurchaserBuyer. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to ~~a UCC-1 lien~~ any interest earned on the ~~general and total revenue receipts of~~ Deposit, except that Buyer shall be entitled to such interest if (w) Buyer closes the ~~Purchaser~~transactions contemplated by this Agreement, ~~as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand~~ (~~$50,000~~x) ~~dollars, is paid to the Seller. I. In the event that the Equipment sold by the~~ Seller ~~to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at~~ breaches its ~~sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased~~obligations under this Agreement, or ~~demand that the Seller include additional Equipment~~ (y) Buyer has terminated this Agreement in accordance with Section 5(b) of this Agreement or by reason of a failure of a condition precedent pursuant to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date Section 9(a) of this Agreement~~. L. The Seller~~. At Buyer's election, the Deposit will be applied to the Purchase Price at ~~its sole option and discretion~~Closing or refunded to Buyer, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if ~~that document were the original document upon which~~ Buyer closes the transactions ~~described herein were based~~contemplated by this Agreement.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)

Purchase Price. ~~The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ (~~$3,260,000~~a) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to On the Closing Date, Sellers shall sell, transfer and deliver to ~~arrange~~ MMA Buyer and LP Buyer, and MMA Buyer and LP Buyer, shall purchase from Sellers the General Partnership Interest and the Limited Partnership Interests, respectively, in exchange for an amount in immediately available funds equal to Seventeen Million Five Hundred Thousand Dollars ($17,500,000) less the book value of the Minority Stock (the "Minority Stock Purchase Price") as of the day immediately preceding the Closing Date as reasonably determined by the parties based on the current book value of the Minority Stock of $ , adjusted to reflect any ---------- changes occurring in the ordinary course of business (the "Initial Payment") and an installment note of MMA Buyer (the "Note," together with the Initial Payment, the "Purchase Price for the ~~shares described in 1.02 (C~~Interests") ~~above, that are free of any restrictions~~ and unconditionally guaranteed as to ~~their transferability or marketability~~ payment and performance by FBR in the ~~open market,~~ principal amount of Nine Million Seven Hundred Thousand Dollars ($9,700,000) and secured by all of the Stock pursuant to an escrow agreement to be ~~paid to~~ entered into among MMA Buyer, MMA, the ~~Seller~~ Sellers and PNC Bank, National Association, as escrow agent (the "Escrow Agreement") and by a first indemnity deed of trust on land and improvements owned by RTS and known as 4916, 4918, 4920 and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ (the ~~fifth~~ "Deed of Trust"). Each of the Note, the Pledge and Security Agreement and the Deed of Trust shall be in the form attached as Exhibit 1.4. ----------- (~~5th~~ b) ~~day subsequent to~~ On the Closing Date, ~~then~~ the ~~Purchaser~~ General Partner and the Additional Stockholders, to the extent applicable, shall ~~immediately file an S-8 registration statement registering such shares~~ sell, transfer and deliver to MMA Buyer, and MMA Buyer shall purchase from the General Partner and the Additional Stockholders, to the extent applicable, the Minority Stock, in exchange for the ~~services of~~ Minority Stock Purchase Price in immediately available funds. (c) On the ~~principals and agents of~~ Closing Date, the ~~Seller, as designated solely by~~ Purchase Price for the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Interests shall be ~~for~~ allocated among the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions Sellers as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market valueSchedule 1.1. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.------------

Appears in 1 contract

Sources: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)

Purchase Price. 2.1 The parties agree that the aggregate consideration to be paid by Purchaser for the Membership Interests shall ~~pay to~~ be the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ sum of Seven Million Eight Hundred Thousand and 00/100 Dollars ($~~3,260,000)~~ 7,800,000.00), adjusted for pro-rated items and other adjustments as provided in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB this Agreement (the "~~mergee~~Purchase Price")~~, issued by Purchaser~~ . The Purchase Price shall be ~~eight hundred sixteen thousand~~ allocated between the Membership Interests of each Operating Company as provided in Exhibit C and shall be paid as follows: (~~816,000~~a) ~~shares~~ $50,000 upon execution of this Agreement by wire transfer of immediately available funds (the "~~mergee shares~~Initial Down Payment"); (b) $50,000 upon expiration of the Due Diligence Period (as defined herein) (the "Additional Down Payment," which together with the Initial Down Payment is hereinafter sometimes collectively referred to as the "Deposits") by wire transfer of immediately available funds, ~~subject~~ which Deposits shall be refundable by Seller to ~~adjustment based upon a pari pasu conversion into~~ Purchaser under certain circumstances as more specifically set forth in this Agreement (c) Five Million Eight Hundred Twenty-Five Thousand and 00/100 Dollars ($5,825,000.00) minus the ~~mergee's shares~~net of credits and pro-rations provided in this Agreement shall be paid in cash (the "Closing Cash Payment"). ~~All Shares issued~~ The Closing Cash Payment shall be payable by Purchaser to Seller ~~shall be duly and validly issued~~ on the Closing Date by ~~Purchaser and shall be fully paid and non-assessable~~wire transfer of immediately available funds to Seller. 1.(d) ~~One~~ A number of shares of Purchaser common stock (the "Common Stock") equal to (i) Nine Hundred ~~Eighty~~ Seventy-Five Thousand and 00/100 Dollars (~~180~~$975,000.00) ~~days from this stock issuance, if~~ divided by (ii) the ~~market~~ volume weighted average closing price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock one share of the ~~issuer is quoted on~~ Common Stock as reported by Nasdaq Capital Market for the ~~Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or~~ thirty (30) consecutive trading days ending on the date that ~~an exemption from registration for such shares~~ is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of immediately preceding the Closing ~~Date~~Date (subject to adjustment as provided herein). ~~The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value~~If, ~~as of~~ during the period between the date of this Agreement and the ~~closing~~Closing, any change in the outstanding shares of common stock of Purchaser shall occur, including by reason of any ~~registered~~ reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or ~~shares exempt from registration~~any stock dividend, ~~of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser,~~ or any record date for any ~~reason,~~ such purpose shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be ~~paid to the Seller by the fifth (5th ) day subsequent to the Closing Date~~established, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares ~~in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value~~ of the ~~original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller~~ Common Stock to be issued hereunder shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parentappropriately adjusted. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Global Self Storage, Inc.)

Purchase Price. The aggregate consideration to be paid by Purchaser to Seller for the Property shall ~~pay~~ be Three Million Seven Hundred Fifty Thousand and 00/100 Dollars ($3,750,000.00), subject to the adjustments set forth in subsections (i), (ii) and (iii) below and the adjustments required by Section 13, and said sum (as so adjusted) shall be defined for all purposes hereof as the "Purchase Price". The Purchase Price shall be payable to Seller on the date of Closing (as hereafter defined) by wire transfer of immediately available funds. (i) The Purchase Price shall be reduced by an amount equal to ~~three million two hundred sixty thousand dollars~~ the documented expenditures of Tenant for Tenant's Improvements to the Premises (~~$3,260,000~~as such term is defined in the Lease) in ~~the following manner: A. The number of common shares~~ accordance with Section 7.3 of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of EquipmentLease, up to $~~20,000,000~~ 15 per square foot of rentable area in ~~appraised fair market value~~the Premises (computed in accordance with the Lease), but in no event shall said adjustment exceed the sum of Two Hundred Forty Thousand and no/100 Dollars ($240,000.00). (ii) The Purchase Price shall be reduced further by an amount equal to the actual amount of rents collected by Seller from Tenant prior to the date of Closing after subtracting therefrom Tenant's pro rata share (as calculated on a square foot basis) of all of the operating expenses of the Property allocable to the period after the date hereof and prior to Closing (the "Option Period"), provided that in no event shall said reduction exceed the sum of Forty-Eight Thousand and no/100 Dollars ($48,000.00). For all purposes hereof, the "operating expenses of the Property" shall be equal to all of the costs and expenses of any kind or nature relating to the Property, and allocable to the Option Period, in managing, operating, equipping, policing, protecting, lighting, repairing, replacing and maintaining the Property, and any personal property therein or thereon, including, but not limited to, any and all real estate taxes, insurance premiums (whether elective or required), maintenance and repairs to the common area utilities, water and sewer, management fees, landscaping, irrigations systems, cleaning, snow removal, lighting, pest control, security costs, supplies, trash removal, parking lot sweeping, personal property taxes, maintenance of and replacement of equipment, exterior painting, roof repairs, parking lot repairs, seal coating, striping, plumbing repairs, and compensation and benefits of employees of Seller or its agents involved in such work. Excluded from such operating expenses are net income or franchise taxes, financing costs (including interest, principal, late payment or other fees), ground rent, if any, capital expenditures (including rentals in lieu of capital expenditures), leasing commissions and other costs of leasing space, depreciation, advertising expenses, compensation of officers and directors of Seller not directly relating to the operation, management or repair of the Property, renovation of space for ~~terms~~ new tenants (including painting and ~~conditions identical~~ decorating), payments to ~~those represented herein~~affiliates of Seller in excess of arms-length fees, base management fees in excess of three percent (3%) of the gross rents, and renovation costs as a result of casualty from causes against which Seller carries insurance. (iii) The Purchase Price shall be increased by an amount which is determined by computing Purchaser's pro rata share of all costs paid by Seller subsequent to the date hereof, in connection with the entering into of each lease for a portion of the Property (or the renewal or extension of any existing lease for a portion of the Property), as approved by Purchaser, which approval shall not be unreasonably withheld or delayed. The allowable "costs for each lease" shall include but not be limited to broker commissions and any tenant improvement or procurement costs incurred in renovating or improving leasehold space for a tenant, and in the case of the new lease for TenSalon, a two percent (2%) construction management fee. Purchaser's pro rata share of such costs for each lease, or the renewal or extension of any existing lease, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value portion of the ~~original MPC~~Property shall be computed by multiplying said costs of a lease by a fraction, ~~as well~~ the numerator of which is the aggregate Base Rent due under the Leases to Purchaser (as the ~~other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All~~ new owner of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of Property) after the date of ~~this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA~~Closing, and ~~any and all Exhibit documents~~the denominator of which is the aggregate Base Rent due during the entire initial term of said tenant's lease. FOR EXAMPLE ONLY: If (i) a new tenant's lease provides for $1,000,000.00 of Base Rent in the aggregate, ~~amendments or addendums~~during the initial term, ~~as applicable~~(ii) $800,000.00 of such Base Rent is due after the date of Closing, and ~~any and all ancillary documents pertinent to these transactions described herein~~(iii) the total costs incurred by Seller in connection with said lease is $50,000.00, in then the ~~name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based~~Purchase Price shall be increased by $40,000.00 [$50,000.00 x ($800,000.00/$1,000,000.00)].

Appears in 1 contract

Sources: Purchase Option Agreement (Radio One Inc)

Purchase Price. The ~~Purchaser shall pay~~ purchase price for the Acquired Assets, the significant value that the parties ascribe to the ~~Seller an~~ non-competition agreements being entered into by all of the parties hereto (the “Purchase Price”) shall be as follows: (a) The Purchase Price as described herein shall be paid by Buyer to Representative and Representative shall distribute such Purchase Price among the Shareholders, as such Shareholders shall agree from time to time amongst themselves. RR shall have no claim or cause of action against Buyer for the Purchase Price or any portion thereof that Buyer pays to Representative in accordance with the terms of this Agreement. (b) Buyer shall execute and deliver a non-interest bearing promissory note (the “Note”) to Representative in the principal amount ~~equal to three million two hundred sixty thousand dollars~~ of Six Hundred Forty Thousand Dollars ($~~3,260,000)~~ 640,000.00), in the form attached as Exhibit 1.3(b), which shall be payable in sixteen (16) equal consecutive bi-monthly installments of $40,000, payable on the first day and the fifteenth day of each succeeding calendar month until fully paid (or if such day is not a business day, then on the next succeeding business day, with the first such payment due on December 2, 2007. Such payments shall be made by wire transfer to a bank account designated by Seller in writing. (c) On the Closing Date, Buyer shall direct PEI to cause its transfer agent to issue in the name of Representative an aggregate of One Hundred Thousand (100,000) shares of unregistered common stock of PEI (the “Initial PEI Stock”), which Representative agrees not to sell, offer, transfer, agree to transfer, assign, pledge, hypothecate or otherwise dispose of, directly or indirectly, until the later of (i) Buyer achieving collected sales (net of any discounts for prompt payment or otherwise; referred to herein as “Net Sales”) of at least $22,000,000.00, based on Representative’s efforts in performance of its obligations under the Sales Representative Agreement and (ii) the expiration of two (2) years from the Closing Date (the “Lockup Period”). Commencing with the first calendar month following ~~manner: A. The number~~ the expiration of ~~common~~ the Lockup Period and continuing for a period of twelve (12) months thereafter, subject to compliance by the parties with all applicable federal, state and local laws, regulations, ordinances and orders (including, without limitation, Rule 144 of the U.S. Securities and Exchange Commission) (“Legal Requirements”), (x) Representative may transfer up to (but not more than) an aggregate of ten thousand (10,000) shares of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ Initial PEI Stock during each calendar month to the ~~OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares)~~Shareholders, subject to ~~adjustment~~ such Shareholders executing a document reasonably acceptable to Buyer by which they agree to be bound by the terms and conditions of this Agreement with respect to the sale of the Initial PEI Stock and (y) the Shareholders and Representative shall be permitted to sell, in the aggregate, up to (but not more than) ten thousand (10,000) shares of the Initial PEI Stock during each calendar month in open market transactions. Following expiration of such twelve (12) month period, Representative and the Sellers shall be permitted to sell shares of the Initial PEI Stock subject only to compliance by the applicable parties with all applicable Legal Requirements. (d) Subsequent to Closing, subject to the provisions set forth herein, Representative shall be entitled to receive from PEI a maximum of Three Hundred Thousand (300,000) additional shares of unregistered common stock of PEI (the “Earnout Stock” and together with the Initial PEI Stock, sometimes collectively referred to as the “PEI Stock”) as set forth below, based upon ~~a pari pasu conversion into~~ Buyer’s Net Sales during the ~~mergee's shares. All Shares~~ thirty-six (36) month period following the Closing Date (the “Earnout Period”) that result from Representative’s performance under the Sales Representative Agreement; provided that, Representative shall only be entitled to be issued shares of Earnout Stock to ~~Seller shall be duly and validly issued~~ the extent the accounts receivable generated by ~~Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty~~ sales are collected by Buyer within one hundred eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on after the date of the ~~effectiveness~~ invoices related to such sales. No shares of Earnout Stock will be earned or issuable based upon any sales that are not collected within such one hundred eighty (180) day period (“Delinquent Sales”) and all such Delinquent Sales shall be excluded from the amount of Net Sales for purposes of this Agreement. 150,000 of shares of the Earnout Stock shall be eligible for issuance to Seller after the end of the first ~~registration~~ year following the Closing Date and the remaining 150,000 shares of ~~any~~ Earnout Stock shall be eligible for issuance to Seller after the end of the ~~mergee shares~~second year following the Closing Date as follows: (i) If Net Sales for the first year (the “First Post-Closing Year”) after the Closing (i.e., the 12 month period following the Closing Date) equal or on exceed $22,000,000.00, then Representative shall be entitled to receive and Buyer shall cause PEI shall to issue to Representative 150,000 shares of the ~~date~~ Earnout Stock. If Net Sales in the First Post-Closing Year are less than $22,000,000.00, then Representative shall be entitled to receive and Buyer shall cause PEI to issue to Representative that ~~an exemption from registration for such shares is available~~ number of Shares of Earnout Stock equal to the ~~Shareholders~~ product of (x) a fraction, the numerator of which is the Net Sales for the First Post-Closing Year and the dominator of which is $22,000,000.00 times (y) 150,000. The shares of Earnout Stock issued pursuant to this subsection (d)(i) are hereinafter referred to as the ~~RRA~~“First Post-Closing Year Earned Shares”. First Post-Closing Year Earned Shares shall be issued (subject to subsection (d)(iv) below) to Representative within 90 days following the end of the First Post-Closing Year, ~~at any time subsequent~~ except to the ~~execution of this EPA, and~~ extent accounts receivable related to certain sales made during the First Post Closing Year have not been collected prior to the ~~180th day subsequent to~~ end of the ~~execution of this EPA~~First Post-Closing Year, ~~then four hundred thousand (400,000) additional~~ the shares of ~~common stock shall~~ Earnout Stock attributable to such uncollected accounts will not be ~~issued~~ deemed earned and ~~delivered by Purchaser or~~ will not be issuable unless and until the ~~issuer, as applicable,~~ accounts receivable related to ~~the Seller immediately following~~ such ~~occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if~~ sales are actually collected and provided that such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that accounts receivable are ~~free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller~~ collected within ~~five (5)~~ 180 days ~~of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as~~ of the date of the ~~closing~~applicable invoice, in which event additional shares of ~~any registered shares, or shares exempt from registration,~~ Earnout Stock in respect of ~~another corporation acceptable to~~ such collected sales will be issued on the ~~Seller in lieu~~ first business day of the ~~mergee's closing shares~~next succeeding calendar quarter immediately following the date the accounts receivable are actually collected. ~~D. In~~ (ii) If Net Sales for the ~~event that the Purchaser, for any reason, shall fail, within seventy~~twenty-~~two (72) days subsequent to~~ four month period after the Closing ~~Date, to arrange for the shares described in 1.02~~ (C“Twenty-Four Month Cumulative Net Sales”) ~~above, that are free of any restrictions as to their transferability~~ equal or ~~marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date~~exceed $55,000,000.00, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller Representative shall be entitled to receive and Buyer shall cause PEI to issue to Representative that number of shares of Earnout Stock equal to 300,000 minus the number of First Post-Closing Year Earned Shares. If the Twenty-Four Month Cumulative Net Sales is less than $55,000,000.00, then Representative shall be entitled to receive and Buyer shall cause PEI to issue to Representative that number of shares of Earnout Stock equal to the difference between (x) the product of (A) a ~~UCC-1 lien on~~ fraction, the ~~general~~ numerator of which is the Twenty-Four Month Cumulative Net Sales and ~~total revenue receipts~~ the denominator of which is $55,000,000 times (B) 300,000 minus (y) the First Post-Closing Year Earned Shares. The shares of Earnout Stock issued pursuant to this subsection (d)(ii) are hereinafter referred to as the “Second Post-Closing Year Earned Shares”). The Second Post-Closing Year Earned Shares shall be issued (subject to subsection (d)(iv) below) to Representative within 90 days following the end of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on second year after the Closing Date ~~has an appraised fair market value~~ (the “Second Post-Closing Year”), except, to the extent accounts receivable related to certain sales made during the Second Post-Closing Year have not been collected prior to the end of the Second Post-Closing Year, the shares of Earnout Stock attributable to such uncollected accounts will not be deemed earned and will not be issuable unless and until the accounts receivable related to such sales are actually collected and provided that such accounts receivable are collected within 180 days of the date of the applicable invoice, in ~~use~~ which event additional shares of ~~less than~~ Earnout Stock in respect of such collected sales will be issued on the first business day of the next succeeding calendar quarter immediately following the date the accounts receivable are actually collected. (iii) If the Twenty-Four Month Cumulative Net Sales do not exceed $~~5,400,000~~55,000,000, but Net Sales for the thirty-six month period following the Closing Date (“Thirty-Six Month Cumulative Net Sales”) equal or exceed $55,000,000, then Representative shall be entitled to receive and Buyer shall cause PEI to issue to Representative that number of shares of Earnout Stock equal to 300,000 minus the ~~Purchaser~~First Year Post-Closing Earned Shares minus the Second Year Post-Closing Earned Shares. If Thirty-Six Month Cumulative Net Sales do not equal or exceed $55,000,000, ~~at its sole discretion, may choose~~ then Representative shall be entitled to ~~effect the closing on a lesser amount~~ receive and Buyer shall cause PEI to issue to Representative that number of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount shares of ~~Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price~~ Earnout Stock equal to the ~~pro~~difference between (x) the product of (A) a fraction, the numerator of which is the Thirty-~~rata number~~ Six Month Cumulative Net Sales and the denominator of ~~additional~~ which is $55,000,000 times (B) 300,000 minus (y) the sum of the First Post-Closing Year Earned Shares and the Second Post-Closing Year Earned Shares. The shares of Earnout Stock earned pursuant to this subsection (d)(iii) shall be issued (subject to subsection (d)(iv) below) on a quarterly basis after they have been earned based on ~~the number of shares in the original purchase price instead of 1,020,000 shares,~~ collected Net Sales and ~~a pro-rata additional amount of cash based~~ shall be issued on the ~~value~~ first business day of the ~~original MPC, as well as~~ next succeeding calendar quarter immediately following the ~~other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇~~ date accounts receivable relating to such sales are actually collected; provided that Representative shall not be entitled to receive and ~~H above~~PEI shall not be obligated to issue shares of Earnout Stock for sales that are not collected with one hundred eighty (180) days of the applicable invoice(s) related to such sales. ~~J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable~~ (iv) Notwithstanding anything herein to the ~~mergee~~contrary, ~~or any other reporting parent or holding company exercising voting or shareholder control over OAS~~ if during the period (~~hereafter,~~ the ~~"Parent"), upon~~ “Interim Period”) ending on the ~~execution and effectiveness~~ later of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of (i) two years form the date of this Agreement~~. L. The Seller~~, ~~at its sole option~~ or (ii) such date as of which cumulative Net Sales generated by Representative equal or exceed $55,000,000, any one or more of the Shareholders cease to be employed by Representative and ~~discretion~~cease to provide the services contemplated by the Sales Representative Agreement, other than as a result of the death or permanent medical disability of such Shareholder (an “Unemployed Shareholder”), the aggregate Earnout Shares (whether previously earned or available to be earned) will be reduced by 25% for each such Unemployed Shareholder. In furtherance of the foregoing, all Earnout Shares issued to Representative pursuant to section 1.3(d) will be held by PEI in escrow pending expiration of the Interim Period; provided, however that during such Interim Period, such shares shall (except to the extent forfeited as a result of an Unemployed Shareholder) be entitled to all dividends and other distributions made by the PEI in connection therewith, all of which distributions will also be held in escrow as aforesaid, to be distributed to Representative (except to the extent forfeited as a result of an Unemployed Shareholder) upon expiration of the Interim Period. In further clarification of the foregoing, if a Shareholder becomes deceased or permanently medically disabled, then so long as Sales Representative is not otherwise in default under this Agreement, there will be no forfeiture by Representative of the shares of Earnout Stock otherwise attributable to such deceased or permanently medically disabled Shareholder. Shares of Earnout Stock that are not earned based upon the Net Sales of Buyer within the Earnout Period will cease to be available for either earnout by or issuance to Representative hereunder and Representative shall have no further right to receive any such remaining and unissued shares of Earnout Stock. Representative agrees not to sell, offer, transfer, agree to transfer, assign, pledge, hypothecate or otherwise dispose of, directly or indirectly, shares of Earnout Stock issued to Representative for a period of one (1) year from the date the shares of Earnout Stock are delivered to Representative (the “Earnout Stock Lockup Period”). With respect to shares of Earnout Stock issued from time to time, commencing with the first calendar month following the expiration of the Earnout Stock Lockup Period related to such shares (“Transferable Earnout Shares”) and continuing for a period of twelve (12) months thereafter, subject to compliance by the parties with all applicable Legal Requirements, (x) Representative may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described hereintransfer, in the ~~name~~ aggregate, up to (but not more than) ten thousand (10,000) shares of the ~~mergee reporting corporation~~Transferable Earnout Shares during each calendar month to the Shareholders subject to such Shareholders executing a document reasonably acceptable to Buyer agreeing to be bound by the terms and conditions of this Agreement with respect to the sale of the Transferable Earnout Shares and (y) Representative and the Shareholders shall be permitted to sell, as in the aggregate, up to (but not more than) ten thousand (10,000) shares of the Transferable Earnout Shares during each calendar month in open market transactions. Following the expiration of such twelve month period, Representative and the Shareholders shall be permitted to sell the Transferable Earnout Shares subject only to compliance by the parties with all applicable Legal Requirements. In no event shall PEI be obligated to issue fractional shares. In the event the formulas described above result in fractional shares of Earnout Stock, the number of shares issuable to Representative shall be rounded up to the next whole share if ~~that document were~~ the ~~original document upon which~~ fraction is greater than or equal to one-half (1/2) of a share and shall be rounded down to the ~~transactions described herein were based~~preceding whole share if the fraction is less than one-half (1/2) of a share.

Appears in 1 contract

Sources: Asset Purchase Agreement (Pure Earth, Inc.)

Purchase Price. The ~~Purchaser~~ aggregate purchase price for the Purchased Assets shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Twenty-Six Million Dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares26,000,000), subject to adjustment ~~based upon a pari pasu conversion into~~ pursuant to Section 2.07 hereof (the ~~mergee's shares~~“Purchase Price”), plus the assumption of the Assumed Liabilities. ~~All Shares issued to Seller~~ The Purchase Price shall be ~~duly and validly issued by Purchaser and~~ paid as follows: (a) The Buyer shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered deposit to the ~~Seller so as to constitute a dollar value in the 2.~~Escrow Agent within three (3) ~~In the event that the common stock~~ Business Days of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date the number of newly issued shares of ARC Common Stock equal to ten percent (10%) of the ~~EPA. Other penalties or sanctions described in~~ aggregate Purchase Price of the ~~RRA may also apply. B. The Purchaser shall pay sixty thousand dollars~~ Purchased Assets (i.e., Two Million Six Hundred Thousand Dollars ($~~60,000~~2,600,000)) ~~in cash, by wire transfer, coincident with~~ valued at the ~~payment of pre-closing and closing expenses,~~ average VWAP for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand twenty (~~204,000~~20) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent Trading Days period prior to the Closing Date, which will be replaced with ten percent (10%) of the Purchase Price (i.e., Two Million Six Hundred Thousand Dollars ($2,600,000)) in cash immediately prior to ~~arrange~~ final disbursement of the Escrow Fund, unless an earlier replacement cash deposit to the Escrow is required under this Agreement, in accordance with all other terms and conditions of this Agreement and the terms of the Escrow Agreement; (b) Ninety Percent (90%) of the Purchase Price (i.e., Twenty Three Million Four Hundred Thousand Dollars ($23,400,000)) of the Purchased Assets shall be delivered by Buyer by wire transfer of immediately available funds for ~~the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability~~ deposit in the ~~open market,~~ accounts designated in writing by Sellers (such designations to ~~be paid~~ occur no less than three (3) Business Days prior to the ~~Seller by~~ Closing) (the ~~fifth~~ “Closing Payments”). From such amount of Closing Payments, Buyer and Sellers agree that Five Million Dollars (~~5th~~ $5,000,000) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid and delivered to M▇▇▇▇▇ for the H▇▇▇▇▇ Real Property and the remainder (i.e., Eighteen Million Four Hundred Thousand Dollars ($18,400,000)) shall be paid and delivered to Kecy for the Business Assets. (c) The Escrow shall be maintained by the Escrow Agent in accordance with the procedures specified in Section 2.11 and in accordance with the terms of the Escrow Agreement to satisfy: (i) any adjustments to the ~~Seller~~ Purchase Price in ~~a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F~~favor of Buyer pursuant to Section 2.07(a)~~, (G)~~ ; and (Hii) ~~below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms~~ any and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), all claims made by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, Buyer or any other ~~reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent~~Buyer Indemnitee against Kecy pursuant to Article IX herein. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (ARC Group Worldwide, Inc.)

Purchase Price. (A) The ~~Purchaser~~ Purchase Price shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be SEVENTY TWO MILLION DOLLARS ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares72,000,000), subject to ~~adjustment based upon a pari pasu conversion into~~ the ~~mergee's shares~~terms, adjustments and prorations as provided herein, plus one and one-half percent (1½%) of the “Gross Sales Price” of each “Unit” (as the same are hereinafter defined). ~~All Shares issued to Seller~~ The Purchase Price shall be ~~duly and validly issued by Purchaser~~ paid as follows: (1) FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000), less the Deposit (which sum is to have been previously delivered to the Clerk and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered released directly to the ~~Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets,~~ CRA and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of credited against the Purchase Price ~~representing deposits to secure the Equipment~~at Closing), out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the ~~Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below~~CRA at Closing. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) ~~title such piece(s) of manufactured equipment~~ Developer shall execute and deliver to the ~~Seller during~~ CRA at Closing the ~~manufacturing process;~~ Promissory Note in the principal amount of FIFTY-SEVEN MILLION AND NO/100 DOLLARS ($57,000,000), together with the Mortgage, which secures such Promissory Note. (3) ~~include~~ At each “Unit Closing” (as hereinafter defined), the Developer shall be obligated to pay the CRA, pursuant to the terms of the immediately succeeding sentence, an amount equal to one and one-half percent (1½%) of the Gross Sales Price of such ~~piece(s~~Unit (the “Percentage Payment”). The accrued Percentage Payment for each Unit Closing shall be paid, in arrears, by the Developer to the CRA quarterly on January 1st, April 1st, July 1st, and October 1st of each year for the Units that have closed during the quarter immediately preceding the applicable payment date. Developer’s quarterly payment of the Percentage Payment shall be accompanied by a list of the Units that closed during the applicable quarter and the Gross Sales Price of each Unit. (B) For the purposes hereof, “Gross Sales Price” shall be deemed to mean the amount actually paid by a purchaser for a completed single family dwelling, townhome and/or residential condominium unit within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for Redevelopment Property, but excluding, however, any of the ~~terms pursuant~~ foregoing that are Affordable Housing Units - as to which no Percentage Payments shall be due, (the foregoing, excluding Affordable Housing Units, is/are herein individually and collectively referred to as a “Unit”) at the first closing thereof (i.e., when a completed Unit is first conveyed) (“Unit Closing”), including options, upgrades and premiums paid by such purchaser in connection therewith, less the amount of any cash discounts or credits. Once the first Unit Closing has occurred, the Percentage Payment shall no longer be due and payable for any subsequent closings of the same Unit. The term “Gross Sales Price” as used herein shall not include, without limitation, any charges or fees collected by the seller of a Unit (or its affiliate) for any builder fees, capital contributions or association, membership, initiation, user or similar fees for a purchaser's use of any amenities or membership in any association, whether on or adjacent to the ~~Purchaser's contract with the contract purchaser~~Redevelopment Property. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Disposition of Property Agreement

Purchase Price. (a) The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB aggregate purchase price (the ~~"mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~“Purchase Price”) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the ~~shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing~~Securities, ~~such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller~~ payable in ~~a manner identical to, and in addition to,~~ accordance with the terms and conditions ~~described in Sections 1.02~~ of this Agreement (Fincluding Section 1.2(b) hereof), shall be (i) a cash amount equal to the sum of (A) $70,000,000 (the “Base Price”), plus (B) the Working Capital Overage, if any, minus (C) the Working Capital Deficiency, if any, minus (D) the EBITDA Deficiency, if any (the sum of clauses (A), (GB), (C) and (HD), the “Cash Purchase Price”), plus (ii) ~~below~~the Restricted Stock. ~~E. The~~ (b) At the Closing, Purchaser shall ~~issue cash payment totaling three hundred fifty thousand dollars~~ (~~$350,000~~i) ~~in increments under terms and conditions as described in~~ pay the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000)~~Cash Closing Payment to the Sellers, by wire ~~coincident with Purchaser's receipt~~ transfer of ~~such~~ immediately available funds ~~as described herein, emanating from the first sales contract(s) payable~~ to ~~the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one~~ an account or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth accounts designated in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold writing by the Seller Representative, (ii) cause Holdings to issue the Restricted Stock to ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, and (iii) cause Holdings to issue the Restricted Stock Units to the ~~Purchaser~~ Non-Seller Recipients and the Other Participants, in each case, in accordance with the allocations set forth on Schedule 1.2(b) of the Disclosure Schedule. (c) The cash payments to be paid, and the Restricted Stock Units to be issued or awarded to the Non-Seller Recipients in accordance herewith shall be in full consideration for the “phantom” economic interests in the Target Companies promised to the Non-Seller Recipients by the Sellers prior to the date hereof. All such “phantom” economic interests outstanding immediately prior to the Closing ~~Date has an appraised fair market value in use of less than $5,400,000~~shall be cancelled, ~~then the Purchaser, at its sole discretion, may choose~~ retired and shall cease to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 sharesexist, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be ~~applicable to the mergee~~converted into, ~~or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent")~~and represent, upon the execution and ~~effectiveness~~ delivery by each Non-Seller Recipient of ~~OAS's merger with~~ a release agreement (each, a “Release”) to the ~~mergee~~Seller Representative, or the right to receive such ~~Parent~~amounts. ~~K. All obligations of the~~ (d) Each Seller expressly acknowledges and agrees that Purchaser shall ~~accede~~ have no responsibility or liability to ~~the mergee,~~ any Seller or any ~~such parent of OAS, as if~~ other Person whatsoever for the ~~original transactions contemplated herein had occurred with~~ manner in which the ~~mergee, or such Parent , as applicable, as of~~ Sellers allocate and distribute the ~~date of this Agreement. L. The Seller, at its sole option and discretion, may require~~ Closing Payment among the ~~Purchaser to re-execute this EPA~~Sellers, and the Sellers will jointly and severally defend, indemnify and hold harmless Purchaser from and against any and all ~~Exhibit documents~~Claims of any Person whatsoever based upon, ~~amendments~~ relating to or ~~addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name~~ arising out of the ~~mergee reporting corporation, as if that document were~~ allocation and distribution of the ~~original document upon which~~ Purchase Price among the ~~transactions described herein were based~~Sellers.

Appears in 1 contract

Sources: Securities Purchase Agreement (ExlService Holdings, Inc.)

Purchase Price. (a) The ~~Purchaser shall pay~~ aggregate purchase price to be paid by Buyer in consideration for the ~~Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares~~ purchase of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Interests (the ~~"mergee"~~“Purchase Price”) shall equal (i) $1,625,000,000 (the “Base Purchase Price”), ~~issued by Purchaser shall be eight hundred sixteen thousand~~ plus (~~816,000~~ii) ~~shares~~ the Applicable Closing Working Capital Amount, minus (iii) the ~~"mergee shares)~~Retention Payments, subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.minus (iv) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date ~~of the EPA. Other penalties or sanctions described in the RRA may also apply~~Transaction Expenses. B. (b) The ~~Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the~~ Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid ~~to the Seller~~ in ~~a manner identical to,~~ accordance with Section 2.05 and ~~in addition to, the terms and conditions described in Sections 1.02 (F~~Section 2.06(f)~~, (G) and (H) below~~. ~~E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars~~ (~~$350,000~~c) ~~in increments under terms and conditions as described in the Money Purchase Contract~~ Within ten ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s10) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of Business Days after the date of this Agreement~~. L.~~ , Buyer shall deliver cash in an amount equal to Five Hundred Million Dollars ($500,000,000) (the “Deposit”) in immediately available funds by wire transfer to an escrow agent mutually selected by Buyer and the Sellers (in such capacity, “Escrow Agent”). Upon delivery by Buyer to Escrow Agent, the Deposit will be deposited by Escrow Agent in an interest-bearing bank account reasonably approved by the Sellers and Buyer (the “Escrow Account”). All investments of the Deposit shall be subject to the approval of each of the Buyer and Sellers, each acting reasonably. The ~~Seller~~Escrow Agent shall hold the Deposit in escrow in the Escrow Account and shall hold or apply such proceeds in accordance with this Section 2.03(c) and the terms of an escrow agreement incorporating the applicable terms of this Section 2.03(c) and otherwise in form and substance reasonably satisfactory to the Sellers (the “Escrow Agreement”). At the Closing, ~~at its sole option~~ the Deposit may, if so elected by the Buyer, be paid by the Escrow Agent to the Sellers as partial payment of the Estimated Purchase Price. If for any reason the Closing does not occur and ~~discretion~~this Agreement is terminated and (without limiting the obligations of each of the Buyer and the Sellers under this Agreement in respect of the Deposit (including pursuant to Section 2.05 and Section 8.02(b))) either Buyer or the Sellers makes a written demand upon the Escrow Agent for payment of the Deposit in accordance with Section 8.02, ~~may require~~ the ~~Purchaser~~ Escrow Agent shall, within twenty-four (24) hours thereof give written notice to ~~re-execute this EPA~~the other party of such demand. If the Escrow Agent does not receive a written objection within seven (7) Business Days after the giving of such notice, the Escrow Agent shall be authorized to make such payment. If the Escrow Agent does receive such written objection within such seven (7) Business Day period or if for any other reason the Escrow Agent in good faith shall elect not to make such payment, the Escrow Agent shall continue to hold such amount until otherwise directed by joint written instructions from the Buyer and the Sellers or a final judgment of a court of competent jurisdiction for the release of such funds in accordance with Section 8.02. All interest earned on the Deposit while held by Escrow Agent shall be paid to Buyer, except that if the Closing occurs and Buyer uses any interest amounts in the Escrow Account to fund in part the Estimated Purchase Price, Buyer shall receive a credit against the Estimated Purchase Price for such interest. Buyer, on the one hand, and ~~any and all Exhibit documents~~the Sellers, ~~amendments or addendums~~on the other hand, ~~as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name~~ shall each bear 50% of the ~~mergee reporting corporation, as if that document were~~ fees and expenses incurred in connection with the ~~original document upon which the transactions described herein were based~~Escrow Account.

Appears in 1 contract

Sources: Purchase Agreement (MGM Resorts International)

Purchase Price. The ~~Purchaser~~ purchase price (the “Purchase Price”) for all of the Sellers’ Ownership Interests and other rights and interests set forth in Section 2.1 above shall ~~pay~~ be comprised of the following: (a) For Sellers’ Ownership Interests under the Operating Agreement, the issuance by EFI to Sellers at Closing of a number of Common Shares, without par value, of EFI (the ~~Seller an amount~~ “EFI Shares”), equal to ~~three million two hundred sixty thousand dollars (~~$~~3,260,000) in~~ 2,800,000 divided by the ~~following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted~~ VWAP on the ~~OTCBB~~ NYSE MKT for EFI's Shares for the ten (~~the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~10) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) trading days ~~from this stock issuance, if the market price of the issuers common stock, as quoted~~ ending on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and day prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, rounded down to ~~arrange for~~ the ~~shares described~~ nearest whole share (the "Closing EFI Shares"); and (b) For Sellers’ rights in ~~1.02 (C~~the Project and other rights not covered under Section 2.2(a) above, ~~that are free of any restrictions as to their transferability or marketability~~ a cash payment in the ~~open market~~amount of $4,500,000, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 which shall be paid by wire transfer of immediately available funds within 30 days following the date “Commercial Production,” as defined hereinafter, is achieved from the Project. Commercial Production means the mining of ore from the Project and the processing of such ore to create the ~~Seller~~ first 100,000 pounds of U3O8 contained in natural uranium concentrates that meets the standard specifications of the ConverDyn conversion facility, Metropolis, Illinois, for natural uranium concentrates. For clarity, Buyer shall not be under any obligation to bring the Project into production or achieve Commercial Production, all of which shall be determined by Buyer in its sole and absolute discretion. The Purchase Price shall be allocated and paid to Sellers (i) based on their respective Ownership Interests in the Company sold to Buyer hereunder (with SCC receiving 85% and ▇▇▇▇ receiving 15% of the Purchase Price), or (ii) on such other basis as directed by SCC and SNEC jointly in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment signed writing delivered to Buyer prior to Closing. Once Commercial Production has occurred, Sellers shall designate the ~~contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser~~ bank account for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $~~300,000 payment~~4,500,000 under Section 2.2(b) at that time and Buyer shall pay the amount to such bank account by wire transfer and the expenses, ~~plus a penalty of fifty thousand ($50,000) dollars~~such as bank charge, ~~is paid to the Seller~~etc. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for ~~terms and conditions identical to those represented herein, for a total price equal to~~ the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller fund transfer shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parentborne by Buyer. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Energy Fuels Inc)

Purchase Price. (a) The ~~Purchaser shall pay to~~ purchase price of the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is One Hundred Fifty Four Million Dollars ($~~3,260,000~~154,000,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price")~~, issued by Purchaser~~ . (b) The Purchase Price shall be ~~eight hundred sixteen thousand~~ paid as follows: (~~816,000~~1) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to Upon the execution of this ~~EPA~~Agreement Buyer shall deposit with the Title Company (as defined below), cash or other immediately available funds in the amount of Five Hundred Thousand Dollars ($500,000) ($450,000 of which amount shall constitute the "Initial Deposit" and $50,000 of which amount shall constitute the "Nonrefundable Payment"). The Nonrefundable Payment shall be fully and completely earned by Seller as consideration for entering into this Agreement with Buyer and for not marketing the Property further prior to entering into an agreement with a potential purchaser of the Property, and ~~prior to~~ the ~~180th day subsequent to~~ Nonrefundable Payment shall only be refundable as specifically provided in Section 1.2(b)(3) below and shall otherwise not be refundable under any circumstances. If the ~~execution of this EPA~~Closing occurs, then ~~four hundred thousand (400,000) additional shares of common stock~~ the Nonrefundable Payment shall be ~~issued and delivered by Purchaser or~~ credited against the ~~issuer, as applicable,~~ Purchase Price. (2) If at the end of the Contingency Period Buyer elects to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident proceed with the ~~Closing Date~~ purchase of the ~~EPA. Other penalties or sanctions described~~ Property Buyer shall deposit in ~~the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident~~ escrow with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee Chicago Title Insurance Company (the "~~mergee closing shares~~Title Company") ~~that are free of any restrictions as to their transferability or marketability~~ an all-cash payment in the ~~open market, to be paid to the Seller within five (5) days~~ amount of ~~the Closing Date. The Purchaser may substitute five hundred ten thousand dollars~~ One Million Five Hundred Thousand Dollars ($~~510,000~~1,500,000) (the "Additional Deposit," and the same, together with the Initial Deposit of $450,000, and the "Supplemental Deposit" (as defined in ~~market value~~Section 8.2 (b)), if made by Buyer, shall be collectively referred to as of the ~~date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares~~"Deposit"). ~~D. In the event that the Purchaser~~(3) THE DEPOSIT AND THE NONREFUNDABLE PAYMENT SHALL BE HELD IN AN INTEREST BEARING ACCOUNT AND ALL INTEREST THEREON SHALL BE DEEMED A PART OF THE DEPOSIT AND THE NONREFUNDABLE PAYMENT. IF THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS CONSUMMATED, ~~for any reason~~THEN THE DEPOSIT AND THE NONREFUNDABLE PAYMENT SHALL BE PAID TO SELLER AT THE CLOSING AND CREDITED AGAINST THE PURCHASE PRICE. IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO (A) SELLER'S DEFAULT HEREUNDER OR (B) THE FAILURE OF THE CONDITIONS FOR THE BENEFIT OF BUYER SET FORTH IN SECTIONS 2.1(G), ~~shall fail~~OR 2.1(H), ~~within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02~~ OR (C) ~~above~~THE TERMINATION OF THIS AGREEMENT BY BUYER UNDER SECTION 5.2, ~~that are free of any restrictions as to their transferability or marketability in the open market~~THEN, ~~to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date~~AS BUYER'S SOLE REMEDY, ~~then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller~~BUYER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SELLER AND RECEIVE A REFUND OF THE DEPOSIT AND THE NONREFUNDABLE PAYMENT, ~~as designated solely by the Seller~~IN WHICH EVENT NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS 6.1, ~~so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings~~9.3 AND 9.9 BELOW, ~~and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing~~PROVIDED, ~~such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares~~HOWEVER, ~~then an additional $325,000 shall be paid to the Seller in a manner identical to~~THAT IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED AS RESULT OF THE WILLFUL DEFAULT OF SELLER, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; BUYER SHALL BE ENTITLED TO BRING AN ACTION AGAINST SELLER FOR ACTUAL DAMAGES INCURRED BY BUYER UP TO AN AMOUNT NOT TO EXCEED THREE PERCENT (3%) ~~include such piece(s~~OF THE PURCHASE PRICE, PROVIDED (A) ~~within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s~~ANY CLAIM THAT BUYER MAKES AGAINST SELLER MUST BE FILED IN THE APPROPRIATE COURT OF COMPETENT JURISDICTION WITHIN NINETY (90) ~~to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s~~DAYS AFTER SUCH TERMINATION NOTICE TO SELLER BY BUYER AND (B) ~~titled to the Seller;~~ SUCH THREE PERCENT (43%) ~~offer all the same conditions and warranties to the contract purchaser for such piece(s~~CAP SHALL NOT APPLY IN THE EVENT THAT SELLER WILLFULLY DEFAULTS UNDER THIS AGREEMENT BY SELLING THE PROPERTY TO ANY THIRD PARTY (OR ENTERS INTO AN AGREEMENT TO DO SO) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 IN BREACH OF THE TERMS HEREOF WITHIN NINETY (~~F), then the three hundred thousand dollars ($300,000~~90) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.DAYS OF THE CLOSING DATE SUBJECT TO THE LIMITATIONS SET FORTH IN THE SECOND SENTENCE OF SECTION 9.18

Appears in 1 contract

Sources: Purchase and Sale Agreement (Ocwen Asset Investment Corp)

Purchase Price. The ~~Purchaser~~ purchase price ("Purchase Price") for the Property shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be TWO MILLION EIGHT HUNDRED FIFTY-THREE THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($~~3,260,000~~2,853,600.00). The Purchase Price shall be payable at Closing as follows: (a) Subject to adjustment pursuant to various applicable provisions of this Agreement requiring adjustment of same, the sum of TWO MILLION SIX HUNDRED TEN THOUSAND AND NO/ 100 DOLLARS ($2,610,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB cash or other immediately available funds (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion Cash Portion of the Purchase ~~Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose.~~Price"); and ~~C. The Purchaser shall cause two hundred four thousand~~ (~~204,000~~b) ~~common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid~~ Subject to the ~~Seller within five (5) days~~ provisions of ~~the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value~~Section 7.4 hereof, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's ~~receipt~~ delivery or issuance to Seller of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares of the Class A Common Stock of Host Funding, Inc. (the "Host Funding Stock") having an aggregate value equal to TWO HUNDRED FORTY-THREE THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($243,600.00) determined by the Host Funding Stock Fair Market Value. The Host Funding Stock will be deemed a "restricted security" under the Securities Act in that such stock will be delivered or issued to Seller in a transaction not involving a public offering. Seller understands that the ~~original purchase price instead~~ Host Funding Stock may not be resold without compliance with the registration requirements of ~~1,020,000 shares~~the Securities Act or in other certain limited circumstances. In this connection, Seller understands the resale limitations imposed by the Securities Act and is familiar with SEC Rules 144 and 145, as presently in effect, and the conditions which must be met in order for Rules 144 and 145 to be available for resale of "restricted securities". Each certificate representing Host Funding Stock will contain the appropriate legend relating to restrictions on sale and transfer under the Securities Act and the Exchange Act. Notwithstanding the foregoing, Purchaser agrees that Seller may distribute the Host Funding Stock to Seller's partners without requirement of legal opinion; provided, however, that (i) each recipient thereof shall have executed and delivered to Seller and Purchaser an Investment Letter Agreement with respect thereto and (ii) Purchaser shall determine within its sole discretion that such transfer will not disqualify Purchaser as a ~~pro-rata additional amount~~ Real Estate Investment Trust under the Internal Revenue Code of ~~cash based on the value of the original MPC~~1986, as ~~well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above~~amended. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Agreement of Sale and Purchase (Host Funding Inc)

Purchase Price. (a) The ~~Purchaser shall pay~~ purchase price (“Purchase Price”) for the assets transferred to Buyer from Seller pursuant to this Agreement will be Three Million Dollars $3,000,000, payable as set forth in Section 2.5(b) below, plus the Earn Out Payments calculated and paid in accordance with Section 2.2 (b) below. The parties to this Agreement hereby agree to allocate the Purchase Price among the assets purchased hereunder by mutual agreement of the parties in good faith made in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder. The parties will each complete and file Form 8594, Asset Acquisition Statement under Section 1060 (the “Form”), in a manner that is consistent with the foregoing allocation, and cooperate in providing information necessary to complete the Form. If the Purchase Price is adjusted subsequent to the filing of the Form, the adjustment will be allocated in the manner required by Temporary Treasury Regulations section 1.1060-IT(f)(3). Following any such adjustment, the parties will file a supplemental statement to the Form in accordance with the instructions thereto. In addition, (i) all federal, state and local tax returns, including any schedules or exhibits thereto, will reflect, and in all respects be consistent with, the agreed upon allocation and (ii) no party will take any action or maintain any position inconsistent with such agreed allocation. (b) Subject to the terms and conditions of this Agreement, Buyer shall make to Seller ~~an amount~~ four additional annual earn-out payments comprised of a combination of cash and TOG Stock the total value of which shall be equal to ~~three million two hundred sixty thousand dollars~~ fifty percent (~~$3,260,000~~50%) ~~in the following manner: A. The number of common shares~~ of the ~~Purchaser~~EBITDA of the SSI Business for each of the four calendar years beginning with January 1, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ 2007 (the ~~"mergee"~~“Earn-Out Payments”)~~, issued by Purchaser~~ . Each annual Earn-Out Payment shall be ~~eight hundred sixteen thousand (816,000) shares (~~allocated between TOG Stock and cash as determined by Seller by written notice to Buyer no later than December 31 of the ~~"mergee shares)~~year for which such payment relates; provided, ~~subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to~~ however, that Seller shall ~~be duly and validly issued by Purchaser and shall be fully paid and non~~allocate at least thirty percent (30%) of each Earn-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered Out Payment to ~~the Seller so as to constitute a dollar value in the 2.)~~ TOG Stock. In the event that ~~the common stock~~ Seller has not provided to Buyer written notice of such allocation for an Earn-Out Payment by December 31 of the ~~issuer is quoted on~~ related year, the ~~Pink Sheets,~~ allocation shall automatically be thirty percent (30%) to TOG Stock and ~~is not quoted on~~ seventy percent (70%) cash. Each annual Earn-Out Payment shall be paid within one hundred twenty (120) days following the ~~OTCBB, or any other regional or national stock exchange, on the date~~ end of the ~~effectiveness~~ calendar year to which it relates (the “Payment Date”). The number of shares of TOG Stock issued on each Payment Date shall be determined by dividing (i) the dollar value of the ~~first registration~~ Earn-Out Payment allocated to TOG Stock pursuant to this Section 2.2(b) by (ii) the Market Value of ~~any~~ TOG Stock per share as of December 31 of the ~~mergee shares~~calendar year to which the Earn-Out Payment relates. On each Payment Date, ~~or on~~ Buyer shall deliver to Seller a statement setting forth in reasonable detail the ~~date that an exemption from registration~~ EBITDA of the SSI Business for such ~~shares is available~~ period, the related Earn-Out Payment and the information utilized to calculate the ~~Shareholders pursuant~~ Market Value of the TOG Stock fifteen days prior to each Payment Date. Notwithstanding the ~~RRA~~foregoing, ~~at any time~~ subsequent to an IPO, Seller may elect to be paid the ~~execution of this EPA~~remaining Earn-Out Payments up to one hundred percent (100%) in cash. (c) For sixty days (60) days following each Earn-Out Payment reasonable access, ~~and prior~~ subject to ~~the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable~~customary confidentially restrictions, to the financial books and records of Buyer shall be given to Seller ~~immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to~~ and an independent accounting firm during normal business hours for the ~~RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date~~ purpose of conducting an independent audit of the ~~EPA~~Earn-Out Payment, the results of which audit shall be final and binding on the parties. ~~Other penalties or sanctions described~~ If the audit results in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits total additional payments to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in ~~lieu~~ excess of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($~~350,000~~50,000) ~~in increments under terms and conditions as described in~~ (the ~~Money Purchase Contract ("MPC"~~“Minimum Earn-Out Discrepancy”), ~~attached herein as Exhibit B~~ then Buyer shall be liable for the fees and expenses of ~~this Agreement. F. The Purchaser~~ the auditor. If the audit results in no payments to Seller or payments below the Minimum Earn-Out Discrepancy, then Seller shall ~~issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from~~ be liable for the ~~first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser~~auditor’s fees and expenses. ~~Purchaser~~ Buyer shall ~~(1) provide~~ make any additional payments to the Seller on within twenty (20) days after the ~~Closing Date~~ completion of the audit. The auditor shall be a ~~contract providing for such payment~~ regional or national accounting firm mutually acceptable to ~~the~~ Buyer and Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be ~~added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased~~ engaged jointly by ~~the contract purchaser that did not include the piece(s) titled to the Seller~~Seller and Buyer. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (O'Gara Group, Inc.)

Purchase Price. The ~~Purchaser shall pay to~~ aggregate purchase price for the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB Purchased Assets (the ~~"mergee"), issued by Purchaser~~ “Purchase Price”) shall be ~~eight hundred sixteen thousand~~ $16,500,000 (~~816,000~~Sixteen Million, Five Hundred Thousand Dollars) ~~shares~~ paid as follows: (~~the "mergee shares)~~i) $7,750,000 (Seven Million, ~~subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly~~ Seven Hundred and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(sFifty Thousand Dollars) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller in cash on the Closing Date ~~a contract providing for such payment to~~ (the ~~Seller and for its obligation to title such manufactured equipment to the Seller~~“Closing Date Payment”); (2ii) ~~title such piece(s) of manufactured equipment to the Seller during the manufacturing process;~~ $8,250,000 (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions Eight Million, Two Hundred and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be madeFifty Thousand Dollars), ~~for any reason,~~ due and payable in immediately available funds under the terms and conditions set forth in ~~sub-paragraph 1.02~~ Second Payment Loan and Security Documents (Fthe “Second Payment”); and (iii) $500,000 (Five Hundred Thousand Dollars) in cash, held back by Buyer at the Closing and placed within five (5) Business Days after the Closing (with evidence of such deposit to be provided by Buyer to Seller and Seller’s Lender (as defined below) on or prior to such date) into a separate bank account controlled by Buyer (such amount, together with such interest that may accrue thereon following the deposit of such amount therein, the “Special Fund Account”), ~~then the three hundred thousand dollars ($300,000) payment due~~ in which account no other Buyer or other funds will be placed or commingled, and from which Special Fund Account Buyer will access, use and distribute funds pursuant to the provisions set forth hereinbelow. The Parties acknowledge and agree that the Seller ~~shall emanate~~ is assigning its right to receive the Second Payment and any amounts to be released by Buyer from the ~~next subsequent sale of such manufactured equipment by the Purchaser~~ Special Fund Account to its ~~contract purchaser(s~~lender, W▇▇▇▇ Fargo Bank, N.A. (“Seller’s Lender”), ~~at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to~~ concurrently with the ~~MPC, attached herein as Exhibit B~~ execution of this Agreement, at and all Parties consent to such assignment. The obligation of Buyer and certain of its affiliates to pay the ~~time~~ Second Payment to Seller’s Lender shall be governed by the terms of the ~~first deliveries~~ loan and security documents attached as Exhibit H hereto (the “Second Payment Loan and Security Documents”) (it being understood that such documents may be amended at any time solely with the consent of ~~contract equipment purchased~~ the parties thereto in accordance with the terms thereof and without requiring any consent of the Seller), which B▇▇▇▇ agrees to execute (and to cause its applicable affiliates to execute) in favor of Seller’s Lender concurrently with the Closing. The Purchase Price shall be paid as provided in Section 3.02. The funds held by Buyer in the ~~contract purchaser that did not include~~ Special Fund Account will be released and paid by Buyer to Seller’s Lender, directly, on the ~~piece(s~~earlier of (i) ~~titled~~ the date on which any Potential Claim (as defined below) has been satisfied or resolved in full to the reasonable satisfaction of Buyer (it being understood that written confirmation from an applicable third party that such third party shall not bring a claim against Buyer with respect to a Potential Claim shall be deemed to be satisfactory), and (ii) the date that is six (6) months after the Closing Date (the “Special Fund Account Period”), provided, that if prior to the expiry of such Special Fund Account Period, a claim is made in writing against Buyer or any of its affiliates respecting an assertion of a Potential Claim against Buyer or any of its affiliates, the funds in the Special Fund Account (or any remaining portion thereof not expended as set forth herein) will not be released to Seller~~. H.~~ ’s Lender until such Potential Claim has been satisfied or resolved in full and Buyer has been released by all relevant parties from any claim arising from such Potential Claim. Buyer shall promptly notify Seller and Seller’s Lender of any and all notices and communications received from the potential holder of a Potential Claim requesting payment from Buyer or asserting any claim or demand against Buyer that would constitute, or could reasonably be expected to become, a Potential Claim covered by this provision. As used herein, a “Potential Claim” means any claim or demand asserted against Buyer or its affiliates, by a Vendor of Seller’s described on Schedule V hereto, for the payment of any material claim, damage or loss. If B▇▇▇▇ becomes aware of, or receives, a claim or demand in connection with a Potential Claim, it will first seek coverage under its R&W Insurance Policy for any and all defense costs, expenses, Losses, settlement costs, or other costs or outlays associated with defending against or resolving such Potential Claim. In the event ~~that~~ it is required to incur any of the ~~payment~~ foregoing costs, expenses or outlays in connection with defending against or resolving a Potential Claim, which in spite of Buyer’s good faith efforts to seek the ~~Seller can~~same are not ~~be made~~fully covered by its R&W Insurance Policy, ~~for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall~~ Buyer will be entitled to ~~a UCC-1 lien on the general and total revenue receipts~~ reimburse itself for such costs, expenses or outlays out of the ~~Purchaser~~Special Fund Account up to the full amount therein, including, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market valueincurred, for ~~terms~~ all its legal and ~~conditions identical~~ related costs reasonably incurred in seeking enforcement of its R&W Insurance Policy to ~~those represented herein, for a total price equal to~~ cover the ~~pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares~~Potential Claim, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent then, as applicable, for an additional sums it is required to incur in defending and resolving the Potential Claim. Thereafter, any remaining funds in the Special Fund Account will be released to Seller’s Lender, as the remaining component of item 2.05(iii) of the Purchase Price set forth above. If Buyer fails to release any funds from the Special Fund Account to Seller’s Lender when Buyer is required to do so pursuant to the terms of this Section 2.05 within three business days of the date required by this Section 2.05, Buyer’s obligation to pay such funds from the Special Fund Account to Seller’s Lender will accrue late payment interest of ~~this Agreement. L. The~~ 8% per annum until paid. Buyer may promptly release to itself required funds out of the Special Fund Account, but only as follows: On a monthly basis as it incurs defense expenses or anticipates the need to make payments to resolve a Potential Claim, Buyer shall present to Seller’s Lender documentation of such expenses incurred or other advance payment need, if applicable. Buyer and S▇▇▇▇▇’s Lender will confer in good faith regarding the same, and Seller’s Lender shall have the right to approve all reasonable and appropriate expenses, outlays or anticipated expenditures by B▇▇▇▇, which approval will not be unreasonably withheld. However, any items or amounts not approved by Seller’s Lender, in its exercise of its reasonable discretion upon review, will not be released or paid by Buyer to itself until the parties have reached agreement as to such items or amounts. Any remaining disputes will be resolved by the Independent Accountant, whose fees shall be paid solely from the funds in the Special Fund Account, which payments will constitute an agreed charge against such funds. Seller’s Lender shall not unreasonably object to or seek, in bad faith, to frustrate B▇▇▇▇’s request for reimbursements or payments from the Special Fund Account. For avoidance of doubt, S▇▇▇▇▇ and Seller’s Lender shall have no liability to Buyer on account of any Potential Claim beyond, at ~~its sole option and discretion~~a maximum, ~~may require~~ the ~~Purchaser to re-execute this EPA~~funds from the Purchase Price placed by Buyer in the Special Fund Account, as set forth above. Further, and ~~any and all Exhibit documents~~for avoidance of doubt, ~~amendments or addendums, as applicable~~(i) the foregoing provisions respecting the Special Fund Account, and ~~any and all ancillary documents pertinent~~ access to ~~these transactions described~~ the funds therein on the terms set forth herein, represent Seller’s and Seller’s Lender’s full and complete liability or responsibility for any Potential Claim; and (ii) nothing in this Section 2.05 expands, alters or otherwise modifies Sections 8.01 or 8.02 herein, or expands in any way the ~~name~~ limited scope of the ~~mergee reporting corporation~~indemnities provided for therein, or alters in any way the limits on B▇▇▇▇’s remedies or Seller’s liability or the indemnity obligations as ~~if that document were the original document upon which the transactions described herein were based~~set forth therein.

Appears in 1 contract

Sources: Asset Purchase Agreement (CareCloud, Inc.)

Purchase Price. ~~The Purchaser~~ As consideration for the purchase of the Purchased Assets, the Common Stock and the Membership Interests, JAI and the Asset Purchasers shall pay to ▇▇▇▇▇▇ and the ~~Seller~~ Asset Sellers an ~~amount~~ aggregate consideration of $26,000,000 (the “Purchase Price”). The Purchase Price shall be payable at Closing, as follows: (i) JAI shall pay or cause to be paid $4,000,000 by wire transfer or certified check to ▇▇▇▇▇▇ as consideration for the Common Stock and the Membership Interests; and (ii) JAI and Asset Purchasers shall pay or cause to be paid $22,000,000 to the Asset Sellers as consideration for the Purchased Assets pursuant to a promissory note (the “Promissory Note”) executed by JAI. The Promissory Note will bear interest at the rate of 9.5% per annum, will be payable in 144 equal ~~to three million two hundred sixty thousand dollars ($3,260,000)~~ monthly installments of principal and interest, will not be pre-payable in the ~~following manner: A. The number~~ first 60 months and, thereafter, if prepaid at the election of ~~common shares~~ JAI, must be prepaid in full and will be subject to a prepayment penalty of 10% of the ~~Purchaser, convertible into common shares~~ then outstanding principal amount of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessablePromissory Note. 1.(A) ~~One Hundred Eighty (180)~~ The Promissory Note will provide the Asset Sellers a right of first refusal, whereby if JAI intends to prepay the Promissory Note using proceeds from a debt financing transaction offered by a third party lender, at least 10 days ~~from this stock issuance~~prior to closing such transaction, if JAI will provide the ~~market price~~ Asset Sellers and/or its affiliates the right to provide financing to JAI, within the 10 day period, in lieu of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchangethird party lender, on the exact terms and conditions offered to JAI in the proposed transaction. (B) The Promissory Note will be secured by the Purchased Assets (as evidenced by all appropriate UCC filings), the Common Stock of CAA and Sadco and the Membership Interests. The initial monthly payment of the Promissory Note, in the amount of $256,602.11, shall be due 30 days after the date of Closing, with each subsequent monthly payment due thereafter. If not provided within the ~~effectiveness~~ Promissory Note, at Closing, each of the ~~first registration~~ Asset Sellers will enter into a participation agreement that will set forth each Asset Seller’s pro rata interest in the Promissory Note (as set forth in Exhibit C attached hereto) and the terms and conditions pursuant to which the designated Agent of the Promissory Note will distribute payments to each Asset Seller. (C) The Promissory Note will contain usual and customary terms and conditions, including usual and customary default provisions. Additionally, a default under the Real Estate Note (as defined in Section 2.3 below) will be deemed to be a default under the Promissory Note. (D) The Promissory Note will also provide that in the event any regulatory or administrative authority of the State of Texas seeks to enforce or attempts to collect any tax or obligation or liability that may be due pursuant to the Texas Patron Tax, which Texas Patron Tax was implemented by the Texas legislature, or seeks to enforce or attempts to collect any obligation or liability pursuant to any amendments or legislation passed in connection therewith relating to the obligation of any of the ~~mergee shares,~~ Asset Sellers or on Adult Cabarets to make payment of the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPATexas Patron Tax, then ~~four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or~~ the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date then principal amount of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market valuePromissory Note, as of the date the tax is enforced, will immediately be reduced by an amount calculated by multiplying 1,200,000 by the dollar amount of the ~~closing~~per-person tax implemented (the “Reduction Amount”). The Reduction Amount cannot exceed $6,000,000. By way of example only, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-if exactly two ~~(72) days subsequent to~~ years after the Closing Date, ~~to arrange for~~ a $2.00 per person tax is implemented and enforced, assuming JAI is current in its monthly payments, the ~~shares described in 1.02 (C) above, that are free~~ Reduction Amount would be $2,400,000 and the then principal amount of ~~any restrictions as to their transferability or marketability in~~ the ~~open market,~~ Promissory Note would be reduced $2,400,000. The Texas Patron Tax is currently enacted to be ~~paid~~ $5 per person which would equate to a $6,000,000 Reduction Amount if enforced. Upon adjustment, if any, of the principal amount of the Promissory Note, at the Asset Sellers election, either (i) the monthly payments from that date forward will be recalculated and adjusted based upon the recalculated and adjusted principal amount, with the number of monthly payments due thereafter remaining the same, or (ii) the amount of the monthly payments will remain at $256,602.11, thereby reducing the number of monthly payments due thereafter (whereby each monthly installment would have a higher ratio of principal to interest). In the event the Reduction Amount exceeds the then outstanding principal amount, the Asset Sellers will have no obligation to repay to JAI the difference between such amounts. In the event the Texas Patron Tax is revised (or replaced by a similar tax) so that adult cabarets are taxed in an alternative format to the ~~Seller by~~ per-person tax currently contemplated, the ~~fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services~~ principal amount of the ~~principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered~~ Promissory Note will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller equitably adjusted in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously consistent with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any intent of the ~~terms pursuant to~~ Reduction Amount formula. Notwithstanding the ~~Purchaser's contract with the contract purchaser. G. In~~ foregoing, in the event that a new patron tax is implemented by the ~~payment~~ Texas legislature which is not the result of renegotiation or adjustment to existing legislation, but rather is a result of the existing Texas Patron Tax being ruled unconstitutional, then in such event, there will be no adjustment to the ~~Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02~~ Promissory Note. (~~F), then the three hundred thousand dollars ($300,000~~E) ~~payment due to the Seller shall emanate~~ The Promissory Note will also contain a partial release plan that will entitle JAI on or after 60 months from the ~~next subsequent sale~~ date of ~~such manufactured equipment by~~ Closing to have certain Purchased Assets released from Asset Sellers’ liens upon the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time aggregate payment of the first ~~deliveries~~ $6,000,000 in principal of ~~contract equipment purchased by~~ the ~~contract purchaser that did not include~~ Promissory Note and Real Estate Note, and thereafter upon the ~~piece(s) titled to~~ aggregate payment of each additional $3,000,000 in principal of the ~~Seller. H. In~~ Promissory Note and Real Estate Note until the ~~event that~~ Promissory Note and Real Estate Note are paid in full. Upon each such release benchmark, JAI and the ~~payment to~~ Asset Sellers will mutually agree upon which of the ~~Seller can~~Purchased Assets will be released from the Asset Sellers’ liens. For purposes of this Section 1.9(ii)(E), any Reduction Amount shall not be ~~made, for any reason, under~~ deemed a reduction in the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts principal of the ~~Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller~~Promissory Note or Real Estate Note. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase Agreement (Ricks Cabaret International Inc)

Purchase Price. ~~The~~ In consideration for the Acquired Assets, the Purchaser shall pay to the ~~Seller~~ Sellers (collectively, the "Purchase Price"): (a) at the Closing, $6,250,000.00 by wire transfer of immediately available funds (the "Cash Proceeds") and $27,750,000.00 in the form of a secured promissory note in the form attached hereto as Exhibit A (the "Note"); and (b) after Purchaser has paid in full either the Note or the Subsequent Note, then (i) on or before the forty-fifth (45th)day after the end of each calendar quarter, an amount equal to ~~three million two hundred sixty thousand dollars~~ fifty percent (~~$3,260,000~~50%) of the Free Cash Flow (as defined in the ~~following manner: A. The number~~ applicable note) (including any partial quarter), and (ii) promptly after receipt thereof, fifty percent of ~~common shares~~ any Equity Sale Proceeds (to the extent not applied toward payment of the ~~Purchaser~~Note or Subsequent Note); provided, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ however, that (i) no amounts shall be payable for any period after the calendar quarter ended March 31, 2006, and ~~currently quoted on~~ (ii) the ~~OTCBB~~ maximum amount payable to Seller pursuant to this clause (b) is $39,050,000.00 (the amount payable under this clause (b) is referred to as the "~~mergee~~Bonus"). The Purchaser may, ~~issued by Purchaser shall~~ in its sole discretion, elect to pay or cause to be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid ~~and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price~~ all or part of the ~~issuers common stock, as quoted on~~ Bonus in the ~~OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number~~ form of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock ~~shall be issued and delivered by Purchaser~~ of divine, Inc. (or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000its successor registrant) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market valueif, as of the date of the ~~closing~~Bonus, of such common stock is listed for trading on any ~~registered shares,~~ national securities exchange or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions designated as ~~to their transferability or marketability in the open market, to be paid to the Seller~~ a national market system security by the ~~fifth~~ NASD, and either (~~5th~~ x) ~~day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering~~ such shares ~~for~~ would be freely tradeable by the ~~services~~ Sellers without registration under the Securities Act of ~~the principals and agents of the Seller~~1933, as ~~designated solely by~~ amended (the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("~~MPC~~Securities Act"), ~~attached herein as Exhibit B~~ or (y) a shelf registration statement pursuant to Rule 415 under the Securities Act, covering the resale of ~~this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of~~ all such ~~funds as described herein, emanating from the first sales contract(s) payable~~ shares issuable to the ~~Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide~~ Sellers, is effective, subject to the ~~Seller on~~ following provisions: (i) the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any value of the ~~terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made,~~ common stock for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on determining the number of shares to be delivered in ~~the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value~~ payment of the ~~original MPC,~~ Bonus shall be its Current Market Value as ~~well~~ of such date. "Current Market Value" shall mean the average daily Market Value (as defined below) during the ~~other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All~~ period of the ~~terms and conditions~~most recent 20 days, ~~rights and entitlements~~ ending on such date, on which the national securities exchanges were open for trading. "Market Value" shall mean, on any date of determination, the amount per share of common stock equal to (A) the last trading price of such common stock on such date, or (B) if there shall have been no trading on such date, the average of the ~~Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution~~ closing bid and ~~effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations~~ asked prices of the ~~Purchaser shall accede to~~ common stock on such date as shown by the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.NASD automated quotation system;

Appears in 1 contract

Sources: Asset Purchase Agreement (Divine Inc)

Purchase Price. The ~~Purchaser~~ aggregate purchase price for the Purchased Assets shall ~~pay to the Seller~~ be an amount equal to ~~three million two hundred sixty thousand dollars~~ Twenty Million Seven Hundred Fifty-Six Thousand Dollars ($~~3,260,000~~20,756,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB as adjusted pursuant to Section 2.2 hereof (the "~~mergee~~Purchase Price"~~), issued by Purchaser~~ ) which shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to ~~the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the~~ Seller on the Closing Date ~~a contract providing for~~ as follows: (a) by wire transfer of immediately available funds to such ~~payment~~ account or accounts as shall have been designated in writing by Seller not less than three (3) days prior to the Closing Date in an amount equal to Ten Million Seven Hundred Fifty-Six Thousand Dollars ($10,756,000), as adjusted pursuant to Section 2.2 hereof; (b) by wire transfer of immediately available funds to that certain interest bearing Escrow Account with interest payable to the Seller for a period of eighteen (18) months following the Closing Date to be established pursuant to that certain Escrow Agreement in the form of Exhibit A hereto, with such changes therein as the Escrow Agent thereunder mutually agreed to by Purchasers and ~~for its obligation~~ Seller (the "Escrow Agent") may request (the "Escrow Agreement") in an amount equal to ~~title such manufactured equipment~~ Five Hundred Thousand Dollars ($500,000); and (c) subject to holdback in an amount limited to the ~~Seller; (2) title such piece(s)~~ amount of ~~manufactured equipment~~ any claims with respect to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions breaches of representations and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this ~~Agreement,~~ Agreement at the time of payment, additional contingent payments of Two Million Dollars ($2,000,000) for the ~~first deliveries of contract equipment purchased by~~ year 2001; Two Million Two Hundred Fifty Thousand Dollars ($2,250,000) for the ~~contract purchaser that did not include~~ year 2002; Two Million Five Hundred Thousand Dollars ($2,500,000) for the ~~piece(s~~year 2003 and Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) ~~titled~~ for the year 2004 (the "Contingent Consideration") shall be payable to Seller as provided for in Section 2.5 hereof. The Purchase Price shall be allocated among the ~~Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions~~ Purchased Assets as set forth in ~~sub-paragraph 1.02 (G), then~~ Exhibit B attached hereto. The parties agree that the ~~three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller~~ allocation set forth in Exhibit B shall be ~~entitled to a UCC-1 lien on~~ used by them and respected for all purposes, including income tax purposes if in conformance with the ~~general~~ rules and ~~total revenue receipts~~ regulations of the ~~Purchaser~~Internal Revenue Code of 1986, as ~~received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand~~ amended ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "~~Parent~~Code"), ~~upon~~ and that the ~~execution and effectiveness of OAS's merger with the mergee~~parties shall follow such allocation for all reporting purposes, ~~or such Parent~~including, without limitation, Internal Revenue Service ("IRS") Form 8594. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Clark/Bardes Holdings Inc)

Purchase Price. ~~The~~ I.2.1 At the Closing, Purchaser ~~shall~~ will pay to Sellers an aggregate of U.S.$25,500,000, less (a) the ~~Seller~~ Rights Payments, (b) the Bonus Payments, (c) the Debt Payments, and (d) the Transaction Expenses (the "INITIAL PURCHASE PRICE"). The Initial Purchase Price shall be decreased dollar-for-dollar by an amount equal to ~~three million two hundred sixty thousand dollars (~~the amount by which the First Quarter EBITDA is a loss of more than $~~3,260,000) in~~ 750,000. The First Quarter EBITDA shall be determined pursuant to Section 1.4. As so adjusted, the ~~following manner:~~Initial Purchase Price is referred to herein as the "PURCHASE PRICE." ~~A. The number~~ I.2.2 Effective immediately prior to the Closing, each holder of ~~common~~ a then-outstanding right to purchase shares of ~~the Purchaser, convertible into~~ CVSI's common ~~shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ stock under CVSI's Equity Incentive Plan (the "~~mergee~~CVSI PLAN"), ~~issued~~ whether or not then exercisable (each, a "RIGHT"), shall, in settlement thereof, receive from CVSI, by ~~Purchaser~~ delivery of certified checks at or prior to the Closing, for each share subject to such Right an amount (subject to any applicable withholding tax) in cash equal to the difference between $1.55 and the per share exercise price of such Right to the extent such difference is a positive number. (The aggregate of such payments is referred to herein as the "RIGHTS PAYMENTS.") The foregoing provisions shall not apply to Rights required to be ~~eight hundred sixteen thousand~~ redeemed by CVSI pursuant to the terms of (~~816,000~~a) ~~shares~~ the Employment Agreement dated as of May 18, 1998, between CVSI and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and (b) the Employment Agreement dated as of July 18, 1997, between CVSI and ▇▇▇▇▇ ▇. ▇▇▇▇▇, as amended on June 16, 1998 and March 19, 1999, which Rights (the "~~mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller~~ SPECIFIED RIGHTS") shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and redeemed effective immediately prior to the ~~180th day subsequent~~ Closing in accordance with the terms of such agreements. Payment for the Specified Rights pursuant to this Section 1.2.2 shall be made by Purchaser at the Closing by delivery of certified checks to Acquisition Co., which shall deliver such checks to the ~~execution~~ holders of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also applySpecified Rights. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to I.2.3 On the Closing Date, Purchaser will pay by wire transfer of immediately available funds to ~~arrange for~~ such accounts as Sellers have theretofore designated an amount equal to the ~~shares described in 1.02 (C) above~~Purchase Price, ~~that are free~~ 93.48% of ~~any restrictions as to their transferability or marketability in the open market, to~~ which will be paid to ~~the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services~~ Acquisition Co. and 6.52% of ~~the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered~~ which will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to ~~the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below~~Computervision. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Acquisition Agreement (4front Technologies Inc)

Purchase Price. (A) The ~~Purchaser shall pay to~~ purchase price of the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is Fifty-Seven Million One Hundred Fifty Thousand and no/100 Dollars ($~~3,260,000~~57,150,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~PURCHASE PRICE")~~, issued by Purchaser~~ . (B) The Purchase Price shall be ~~eight hundred sixteen thousand~~ paid as follows: (~~816,000~~1) ~~shares~~ Within three (3) business days after the Effective Date, Buyer shall deposit in escrow with First American Title Insurance Company (the "~~mergee shares~~TITLE COMPANY") cash or other immediately available funds in the amount of Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00), ~~subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller~~ which sum shall be ~~duly~~ increased to Five Million and ~~validly issued by Purchaser~~ no/100 Dollars ($5,000,000.00) within three (3) business days after the expiration of the Contingency Period, provided this Agreement has not been terminated prior to the end of the Contingency Period (the "Deposit"). One Million and no/100 Dollars ($1,000,000.00) of the Deposit (the "INITIAL PORTION") shall be ~~fully paid and~~ non-~~assessable. 1.) One Hundred Eighty (180) days~~ refundable to Buyer from ~~this stock issuance, if~~ and after the ~~market price of the issuers common stock,~~ Effective Date for any reason whatsoever except as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) otherwise expressly provided herein. In the event ~~that~~ Buyer waives or is deemed to have waived Buyer's right to terminate this Agreement pursuant to Section 2.2 below, the ~~common stock~~ entire Deposit shall be non-refundable to Buyer for any reason whatsoever except as otherwise expressly provided herein. The Deposit shall be held in an interest bearing account and all interest thereon, less investment fees, if any, shall be deemed a part of the ~~issuer is quoted on~~ Deposit. If the ~~Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date~~ sale of the ~~effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares~~ Property as contemplated hereunder is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Dateconsummated, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 Deposit shall be paid to Seller at the ~~Seller~~ Closing (as defined in Section 1.2(b)(2) below) and credited against the Purchase Price. If the sale of the Property is not consummated due to Seller's default hereunder, then Buyer may elect, as Buyer's sole and exclusive remedy, either to: (1) terminate this Agreement and receive a ~~manner identical to~~refund of the Deposit (including the Initial Portion), ~~and~~ in ~~addition to, the terms and conditions described~~ which event neither party shall have any further rights or obligations hereunder except as provided in Sections ~~1.02~~ 6.1, 9.3 and 9.9 below, or (~~F), (G~~2) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B enforce specific performance of this Agreement~~. F. The Purchaser~~ . Buyer shall ~~issue cash payment totaling three hundred thousand dollars ($300,000)~~not have any other rights or remedies hereunder as a result of any default by Seller prior to Closing, and Buyer hereby waives any other such remedy as a result of a default hereunder by ~~wire coincident with Purchaser's receipt of such funds~~ Seller. If the sale is not consummated due to any default by Buyer hereunder, then Seller shall retain the Deposit as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller liquidated damages as its sole and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contractexclusive remedy. Seller shall not have ~~no liability whatsoever for~~ any other rights or remedies hereunder as a result of ~~the terms pursuant~~ any default by Buyer prior to ~~the Purchaser~~Closing, and Seller hereby waives any other such remedy as a result of a default hereunder by Buyer. The parties have agreed that Seller's ~~contract with the contract purchaser. G. In~~ actual damages, in the event ~~that the payment~~ of a failure to ~~the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment~~ consummate this sale due to ~~the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser~~ Buyer's default prior to ~~its contract purchaser(s)~~Closing, ~~at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall~~ would be ~~added~~ extremely difficult or impracticable to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market valuedetermine. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafterAfter negotiation, the ~~"Parent")~~parties have agreed that, ~~upon~~ considering all the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of circumstances existing on the date of this Agreement, the amount of the Deposit is a reasonable estimate of the damages that Seller would incur in such event. L. (2) The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name balance of the ~~mergee reporting corporation, as if that document were~~ Purchase Price (plus or minus the ~~original document upon which~~ prorations pursuant to Section 8.5 hereof) shall be paid to Seller in cash or by wire transfer of other immediately available funds at the ~~transactions described herein were based~~consummation of the purchase and sale contemplated hereunder (the "CLOSING").

Appears in 1 contract

Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)

Purchase Price. ~~The Purchaser~~ In consideration of the purchase and sale of Equity Interests on Schedule 1.1, Buyer shall pay: (a) As soon as practicable upon the execution of this Agreement, to Seller’s designated bank, $150,000,000 in immediately available funds pursuant to wire instructions designated by the Seller. (b) In accordance with Section 2.2(b) of the Original Agreement, the Parties acknowledge and agree that they have negotiated in good faith with respect to any additional amendments, modifications, supplements and/or revisions that were reasonably required by the Buyer Parties. This Agreement sets forth such “Agreed Revisions” (as defined in the Original Agreement). As result of the foregoing, Buyer agrees that no later than 3:00 pm EST on the date falling ten (10) Business Days after the Effective Date, the Buyer shall pay ~~to the Seller~~ an amount equal to ~~three million two hundred sixty thousand dollars~~ $81,000,000 in immediately available funds pursuant to wire instructions designated by the Seller. (~~$3,260,000~~c) in Within no later than thirty (30) days of (x) the ~~following manner: A. The number~~ date of ~~common shares~~ termination of this Agreement, or (y) the date upon which the Closing for the last of the ~~Purchaser, convertible into common shares of a reporting corporation~~ Target Companies and the applicable Holding Company to be acquired by the Buyer has been consummated (which shall be no later than the date that is three months from last Target Transfer Date set forth in ~~a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Schedule 1.1 (as amended) (the ~~"mergee"~~“Outside Date”)~~, issued by Purchaser shall be eight hundred sixteen thousand~~ ): (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.i) In the event that the ~~common stock~~ aggregate “Equity” amount actually transferred to the Buyer as of the ~~issuer~~ last Closing Date with respect to all the Target Companies listed on Schedule 1.1 (as amended) (as reflected by the sum of all Final Transfer Price amounts set forth in each Closing Date Project SPA) is ~~quoted on~~ greater than the ~~Pink Sheets, and is not quoted on~~ sum of (A) the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders amounts paid by Buyer pursuant to ~~the RRA~~Sections 2.2(a) and 2.2(b), ~~at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand~~ (~~400,000~~B) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price ~~representing deposits~~ Adjustment, and (C) and any other purchase price adjustments mutually agreed to ~~secure the Equipment, out of the proceeds of any loan or equity arranged~~ by the ~~Purchaser for any purpose. C. The Purchaser~~ Parties, then the Buyer shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable make an additional payment to the Seller in ~~lieu of~~ an amount equal to such excess (hereinafter, the ~~mergee's closing shares.~~“Additional Payment Amount”); or D. (ii) In the event that the ~~Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent~~ aggregate “Equity” amount actually transferred to the Buyer as of the last Closing ~~Date~~Date with respect to all of the Target Companies listed on Schedule 1.1 (as amended) (as reflected by the sum of all Final Transfer Price amounts set forth in each Closing Date Project SPA) is less than the sum of (A) the amounts paid by Buyer pursuant to Sections 2.2(a) and 2.2(b), ~~to arrange for~~ (B) the ~~shares described in 1.02~~ Purchase Price Adjustment, and (C) ~~above, that are free of~~ and any ~~restrictions as~~ other purchase price adjustments mutually agreed to ~~their transferability or marketability in the open market, to be paid to the Seller~~ by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the SellerParties, then the Seller shall ~~be entitled to~~ make a ~~UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the~~ reimbursement payment ~~of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid~~ to the ~~Seller~~Buyer in an amount equal to such deficiency (hereinafter, the “Reimbursement Amount”). ~~I. In the event that the Equipment sold by the Seller~~ (d) Determination of actual “Equity” value referred to ~~the Purchaser on the Closing Date has an appraised fair market value~~ in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, Section 2.2(c) for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller each Target Company shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger made in accordance with the ~~mergee, or such Parent~~procedures set forth below in Section 3.4. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Equity Interest Purchase and Sale Agreement (Terraform Global, Inc.)

Purchase Price. The Purchase Price for the Premises is Ten Million ($10,000,000) Dollars, payable as follows: (a) Concurrently with the execution of this Agreement, Purchaser shall deliver to Philip D. Neuer, Esq. (the "Escrow Holder") the sum of Thousa▇▇ ($▇▇,▇▇▇) ▇▇▇lars in immediately available federal funds (the "Initial Deposit") to be held by the Escrow Holder in a federally insured, interest bearing account or group of accounts. The Initial Deposit shall be disbursed or applied by the Escrow Holder in accordance with the provisions of this Agreement. Interest shall follow the Initial Deposit. (b) On the sixtieth (60th) day following full execution of this Agreement, Purchaser shall deliver to the Escrow Holder the additional sum of Thousand ($50,000) Dollars in immediately available federal funds (together with the funds deposited in accordance with P. 1 (c), below, the "Earnest Money") to be held by the Escrow Holder in a federally insu▇▇▇, ▇▇terest bearing account or group of accounts. The Earnest Money is non-refundable and shall immediately become th▇ ▇▇▇▇lute property of and paid to the Seller on the ninety-first (91st) day following full execution of this Agreement. Purchaser shall have no right to seek repayment of all or any portion of the Earnest Money for any reason whatsoever except for Seller's can▇▇▇▇▇▇▇on due to the environmental conditions set forth in Article 8, below. (c) On the ninetieth (90th) day following full execution of this Agreement, Purchaser shall pay to the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Escrow Holder the sum of One Hundred Thousand ($~~3,260,000~~100,000) Dollars in immediately available federal funds (together with the ~~following manner: A. The number of common shares of the Purchaser~~funds deposited in accordance with P. 1 (b), ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (~~above, the "~~mergee~~Earnest Money")~~, issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares~~. ~~All Shares issued to Seller shall be duly and validly issued by Purchaser~~ The Earnest Money is non-refundable and shall ~~be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ im▇▇▇▇▇▇▇ly become the ~~market price~~ ▇▇▇▇▇▇▇e property of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the ~~Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller;~~ ninety-first (291st) ~~title such piece(s)~~ day following full execution of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the this Agreement. Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no ~~liability whatsoever~~ right to seek repayment of all or any portion of the Earnest Money for any ~~of the terms pursuant~~ reason whatsoever except for Seller's can▇▇▇▇▇▇▇on due to the ~~Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and~~ environmental conditions set forth in ~~sub-paragraph 1.02~~ Article 8, below. (~~F), then~~ d) On the ~~three~~ one hundred ~~thousand dollars~~ twentieth (~~$300,000~~120th) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B day following full execution of this Agreement, at Purchaser shall deliver to the ~~time~~ Escrow Holder the additional sum of Seventy Five Thousand ($75,000) Dollars in immediately available federal funds (together with the Initial Deposit, the "Deposit") to be held by the Escrow Holder in a federally insured, interest bearing account or group of accounts. The Deposit shall be disbursed or applied by the Escrow Holder in accordance with the provisions of this Agreement. Interest shall follow the Deposit. (e) On the one hundred fiftieth (150th) day following full execution of this Agreement, Purchaser shall deliver to the Escrow Holder the additional sum of Seventy Five Thousand ($75,000) Dollars in immediately available federal funds (to be added to and constitute the "Deposit") to be held by the Escrow Holder in a federally insured, interest bearing account or group of accounts. The Deposit shall be disbursed or applied by the Escrow Holder in accordance with the provisions of this Agreement. Interest shall follow the Deposit. (f) On the one hundred eightieth (180th) day following full execution of this Agreement, Purchaser shall deliver to the Escrow Holder the additional sum of Seventy Five Thousand ($75,000) Dollars in immediately available federal funds (to be added to and constitute the "Deposit") to be held by the Escrow Holder in a federally insured, interest bearing account or group of accounts. The Deposit shall be disbursed or applied by the Escrow Holder in accordance with the provisions of this Agreement. Interest shall follow the Deposit. (g) On the two hundred tenth (210th) day following full execution of this Agreement, Purchaser shall deliver to the Escrow Holder the additional sum of Seventy Five Thousand ($75,000) Dollars in immediately available federal funds (to be added to and constitute the "Deposit") to be held by the Escrow Holder in a federally insured, interest bearing account or group of accounts. The Deposit shall be disbursed or applied by the Escrow Holder in accordance with the provisions of this Agreement. Interest shall follow the Deposit. (h) The balance of the ~~first deliveries~~ Purchase Price, namely Nine Million Five Hundred Thousand ($9,500,000) Dollars shall be payable at Closing in immediately available federal funds by wire transfer or other form acceptable to Seller, subject to satisfaction of ~~contract equipment purchased by~~ the ~~contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions~~ mortgage contingency set forth in ~~sub-paragraph 1.02 (G)~~Article 13, then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Sellerbelow. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Option Contract of Sale (Jaclyn Inc)

Purchase Price. ~~The Purchaser shall pay~~ (a) Subject to the performance by Seller ~~an amount equal~~ of all of its obligations under this Agreement (including delivering all documents required to ~~three million two hundred sixty thousand dollars ($3,260,000~~be delivered) at the Closing, in ~~the following manner: A. The number of common shares~~ consideration of the ~~Purchaser~~acquisition of the Purchased Assets under Section 2.1 and the Base Technology licenses and Patent License granted under Section 2.2, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Buyer agrees (~~the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~i) ~~shares (the "mergee shares), subject~~ to ~~adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued~~ deliver to Seller ~~shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable.~~ evidence of Buyer’s instruction to its bank (“Bank Instruction”) to release funds within one (1.) ~~One Hundred Eighty (180) days from this stock issuance, if the market price~~ business day of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date ~~of the EPA. Other penalties or sanctions described~~ in the ~~RRA may also apply. B. The Purchaser shall pay sixty thousand dollars (~~amount of $~~60,000) in cash,~~ 9,450,000.00 to be wire transferred to an account or accounts designated by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee Seller (the ~~"mergee closing shares"~~“Initial Installment”); (ii) ~~that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller~~ within ~~five~~ seven (57) business days of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars~~ date on which Seller, Buyer and Chinatrust Commercial Bank (Taiwan) (the “Escrow Agent”) shall have executed that certain Indemnity Escrow Agreement in substantially the form attached hereto as Exhibit A (the “Escrow Agreement”), to deposit on behalf of Seller into an account or accounts designated by Escrow Agent (the “Escrow Fund”) $~~510,000~~2,000,000.00 in immediately available funds (the “Escrow Consideration” and together with the Initial Installment and the Employee Bonus Funds set forth in Section 2.8(a) ~~in market value~~below, as the “Immediate Consideration”), which consideration shall be subject to the provisions of the ~~date~~ Escrow Agreement and (iii) to assume the Assumed Liabilities. Also at such time as all Technology embodied in the Assigned Technology, Licensed Technology and Transferred Third Party Technology shall have been copied and certified by Buyer, Buyer shall deliver to Seller’s designated bank account an additional $2,000,000.00 (the “Hold Back Amount”, and together with the Immediate Consideration, the “Purchase Price”). (b) Upon Seller’s receipt of the ~~closing~~Bank Instruction set forth in subsection 2.7(a)(i) above, Seller shall arrange to release within three (3) Working Days thereafter and return to Silicon Integrated Systems Corporation of Hsin-Chu, Taiwan, R.O.C., the sole shareholder of Buyer (“Parent”), the $1,500,000.00 previously paid by Parent to Seller as a good-faith fully refundable deposit (the “Deposit”). (c) The Purchase Price shall be allocated to the intellectual property (including, but not limited to, trademarks, trade names, patents, licenses, copyrights) allocated [*****] to the Cayman Seller and [*****] to the US Seller. For purposes of this allocation, no value is being attributed to goodwill or going concern, covenant not to compete or contingent or assumed liabilities. Each party agrees to report the federal, foreign, state, local and other Tax consequences of the transactions contemplated by this Agreement in a manner consistent with such allocation (including any modifications thereto as a result of any ~~registered shares,~~ payments or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to other adjustments made after the Closing Date~~, to arrange for the shares described in 1.02 (C~~) ~~above, that are free~~ and shall not take any position inconsistent therewith upon examination of any ~~restrictions as to their transferability~~ Tax return or ~~marketability~~ report, or in any litigation, investigation or otherwise, unless otherwise required by a taxing authority. Each party shall cooperate in the ~~open market,~~ timely filing of Forms 8594 (if required) with the Internal Revenue Service. (d) All payments made to ~~be paid~~ Seller pursuant to ~~the Seller by the fifth~~ this Agreement (~~5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services~~ including payments of the ~~principals and agents of~~ Immediate Consideration, the ~~Seller~~Escrow Consideration, ~~as designated solely by~~ future royalty payments or amounts from the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Bonus Plan) shall be made free and clear of and without deduction or withholding for ~~the payment~~ or on account of ~~services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing~~any present or future income, ~~such filing may be substituted for the S-8 filing. Should the issuer~~ stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings of ~~such shares not qualify to file an S-8 registration for such shares~~any kind, ~~then an additional $325,000 shall be paid to the Seller in a manner identical to~~now or hereafter imposed, ~~and in addition to~~levied, ~~the terms and conditions described in Sections 1.02 (F)~~collected, ~~(G) and (H) below~~withheld or assessed by any Governmental Entity. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Ess Technology Inc)

Purchase Price. The ~~Purchaser~~ purchase price (the “Purchase Price”) to be paid to Seller for the sale of the Property to Buyer as provided for herein shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Two Million Six Hundred Twenty Thousand ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"2,620,000.00), ~~issued by Purchaser~~ which is predicated on a purchase at a 8.73% cap rate. The Purchase Price shall be ~~eight hundred sixteen thousand (816,000) shares (the "mergee shares)~~paid by ▇▇▇▇▇, subject to credit, debit and adjustment ~~based upon a pari pasu conversion into~~ as hereinafter provided and subject to all the ~~mergee's shares~~terms and conditions herein contained, as follows: (a) Within one (1) day of the Effective Date, Buyer shall deposit as ▇▇▇▇▇▇▇ money in escrow the sum of $26,000.00 in cash (such sum, together with any interest thereon, being hereinafter collectively referred to and held as the “Deposit”), with Chicago Title Company, ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇, Suite 200, Los Angeles, California 90017, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ (being herein sometimes referred to as the “Title Company”). ~~All Shares issued~~ Notwithstanding anything to ~~Seller shall be duly and validly issued by Purchaser and shall be fully paid and~~ the contrary herein, the Deposit will become non-~~assessable~~refundable upon expiration of the Due Diligence Period (Effective Date through thirty days after the Effective Date). 1.(b) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchangeBuyer shall, on the date of Closing, pay the ~~effectiveness~~ Purchase Price, subject to credit for application of the ~~first registration of any~~ amount of the ~~mergee shares, or on the date that an exemption from registration for such shares is available~~ Deposit paid to ~~the Shareholders pursuant to the RRA, at any time subsequent to the execution~~ Seller as provided in subsection (a) of this ~~EPA~~Section 1.2 and subject to credit and adjustment as provided in Section 1.4 hereof, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 which shall be paid to Seller by the wire transfer of good, current, immediately available funds and which Buyer shall cause to be received by Seller ~~in a manner identical to, and in addition to,~~ on or before 4:00 p.m. (Central Standard Time) on the ~~terms and conditions described in Sections 1.02 (F), (G) and (H) below~~date of Closing. ~~E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars~~ (c) Notwithstanding anything in this Agreement to the contrary, One Hundred and No/100 Dollars ($~~350,000~~100.00) ~~in increments under terms~~ of the Deposit will be non-refundable to Buyer and ~~conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B~~ distributed to Seller upon any termination of this ~~Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars~~ Agreement as independent consideration (~~$300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from~~ the ~~first sales contract(s~~“Independent Consideration”) ~~payable~~ for Seller entering into this Agreement to the ~~Purchaser from~~ exclusion of other potential Buyers and granting Buyer the ~~contemplated purchaser(s)~~ right to inspect and evaluate the property during the Due Diligence Period. The Independent Consideration is not refundable to Buyer under ~~such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide~~ any circumstance except if closing does not occur due to Seller default, but will be applied to the ~~Seller on~~ Purchase Price upon the ~~Closing Date a contract providing for such payment~~ Closing. The Title Company shall hold the Deposit and make delivery of the Deposit to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, party entitled thereto under the terms ~~and conditions set forth~~ hereof. Seller may instruct the Title Company to invest the Deposit in ~~sub-paragraph 1.02 (F)~~such short term, ~~then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale~~ high grade securities, interest bearing bank accounts, bank certificates of ~~such manufactured equipment by the Purchaser to~~ deposit or bank repurchase agreements as Seller, in its ~~contract purchaser(s)~~discretion, ~~at its next delivery of such equipment~~deems suitable, and ~~a penalty of twenty-five thousand ($25,000) dollars~~ all interest and income thereon shall be added to ~~the MPC, attached herein as Exhibit B of this Agreement, at the time~~ and shall become a part of the ~~first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller~~Deposit. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Star Equity Holdings, Inc.)

Purchase Price. (a) The ~~Purchaser shall pay~~ purchase price to be paid for the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB Shares (the "~~mergee~~Purchase Price") shall be Fifty-Nine Million Twenty-Five Thousand Dollars ($59,025,000), payable in cash, and subject to the Post Closing Adjustments as defined in section 1.3(c) below. (b) Within 30 days following the Closing Date (as such date is defined in section 2 below), Seller, at Seller's sole cost and expense, shall cause KPMG Peat Marwick LLP ("KPMG") to prepare and deliver to the Company, Seller and Buyer its report on a schedule in the form annexed in Section 1.3 of the Disclosure Letter (the "Closing Schedule"). The Closing Schedule shall reflect the net asset value of the Company ("NAV") as of the end of business on April 25, 1998 (the "Base NAV"), ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares~~ July 25, 1998 (the "~~mergee shares~~July 25 NAV"), ~~subject to adjustment based upon a pari pasu conversion into~~ the ~~mergee's shares. All Shares issued to Seller shall be duly~~ Closing Date (the "Closing Date NAV") and ~~validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty~~ (~~180) days from this stock issuance,~~ if ~~the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets,~~ such date is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the ~~180th day subsequent to the execution of this EPA~~Closing Date) August 15, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee 1998 (the "~~mergee closing shares~~August 15 NAV"). The Company NAV at each such date shall be determined in accordance with generally accepted accounting principles consistently applied ("GAAP") except that ~~are free of any restrictions as to their transferability or marketability in~~ the ~~open market, to~~ following shall be ~~paid to the Seller within five~~ excluded from such determination: (5i) ~~days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value,~~ intercompany receivables outstanding as of the date of the ~~closing, of~~ NAV determination which such receivables will not be paid into the Company by Seller or Seller's affiliates; (ii) any ~~registered shares, or shares exempt from registration, of another corporation acceptable to the Seller~~ receivables in ~~lieu~~ favor of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating Company from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, Buyer outstanding as of the date of ~~this Agreement~~the NAV determination which such receivables will not be paid into the Company by Buyer and shall be written off simultaneously with the Closing; (iii) current income taxes payable, which shall be the responsibility of the Seller; and (iv) deferred income tax assets and liabilities, which shall be the responsibility of the Seller. L. (c) The ~~Seller~~Purchase Price set forth in Section 1.3(a) above shall be adjusted according to the following post-closing determinations (the "Post-Closing Adjustments"): (i) The Purchase Price shall be decreased by the amount, ~~at its sole option and discretion~~if any, of Excluded Liabilities which have not been satisfied by Seller prior to Closing. (ii) The Purchase Price shall be increased if more, or decreased if less, as the case may ~~require~~ be by all of the ~~Purchaser~~ following: (w) the full amount, if any, by which the July 25 NAV is more or less than the Base NAV; (x) fifty percent (50%) of the amount, if any, by which the August 15 NAV is more or less than the July 25 NAV if the Closing Date is subsequent to ~~re-execute this EPA~~August 15, 1998, or fifty percent (50%) of the amount, if any, by which the Closing Date NAV is more or less than the July 25 NAV if the Closing Date is on or before August 15, 1998; (y) ten percent (10%) of the amount, if any, by which the Closing Date NAV is more or less than the August 15 NAV if the Closing Date is subsequent to August 15, 1998, and (z) an amount equal to thirty-nine percent (39%) of the total increase in NAV that does not increase the Purchase Price pursuant to the formula set forth in (x) and (y) above. (d) During the thirty (30) days following the Buyer's receipt of the Closing Schedule, Buyer and Deloitte & Touche, LLP ("Deloitte") shall be permitted, subject to the execution of customary and standard releases, to review such Schedule and working papers of KPMG related thereto. If any matter is in dispute and ~~all Exhibit documents~~cannot be resolved in such thirty (30) day period, ~~amendments~~ both accounting firms shall, within an additional five (5) day period following expiration of Deloitte's review period, submit the question or ~~addendums~~questions in dispute to the Washington, ~~as applicable~~D.C. office of Arthur Anderson, ~~and any and all ancillary documents pertinent to these transactions described herein~~LLP, or, in the ~~name~~ event Arthur Anderson has a conflict ▇▇ ▇▇ o▇▇▇▇▇▇▇▇ unable or unwilling to ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇gement, such other mutually agreed upon, neutral auditor (the "Neutral Auditor") which shall resolve the dispute within thirty (30) days after the question(s) are referred to them and whose decision shall be final and binding on all parties hereto. The parties shall share equally the fees, costs and expenses of the ~~mergee reporting corporation~~Neutral Auditor. On the later of (i) 120 days after the Closing Date or (ii), ~~as if that document were~~ five (5) business days after the ~~original document upon which~~ earlier of the ~~transactions~~ Seller and Buyer agreeing on the Post Closing Adjustments or the final decision of the Neutral Auditor, the payments described ~~herein were based~~in Section 1.4(b) below shall occur (the "Second Closing Date").

Appears in 1 contract

Sources: Stock Purchase Agreement (Packaged Ice Inc)

Purchase Price. ~~The Purchaser shall pay~~ In consideration of the sale by Seller to Buyer of the Subject Assets, subject to the ~~Seller~~ assumption by Buyer of the Assumed Liabilities, Buyer will pay an ~~amount~~ aggregate purchase price (the “Purchase Price”) equal to ~~three million two hundred sixty thousand dollars~~ Three Million Four Hundred and Forty Thousand Dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares3,440,000.00), subject to adjustment ~~based upon a pari pasu conversion into~~ pursuant to Section 1.4. The Purchase Price shall be paid as follows: (a) at the ~~mergee's shares. All Shares issued~~ Closing, Buyer shall deliver to Seller by wire transfer pursuant to wiring instructions provided by Seller, Three Million Two Hundred and Eighty Thousand Dollars ($3,280,000.00); and (b) On the third anniversary of the Closing, Buyer shall ~~be duly and validly issued~~ pay to Seller by ~~Purchaser and shall be fully paid and non-assessable. 1.)~~ wire transfer pursuant to wiring instructions provided by Seller, the sum of One Hundred ~~Eighty~~ and Sixty Thousand Dollars (~~180~~$160,000.00) ~~days~~ (the “Earn-Out Payment”), provided that the Net Revenue targets set forth in Schedule 1.3(c) for the twelve months ending on June 30, 2010 have been met. If the Net Revenue targets set forth in Schedule 1.3(c) for the twelve months ending on June 30, 2010 are not met, then Seller will not be entitled to any payment under this Section 1.3(c). The term “Net Revenue” shall mean the gross receipts earned by the Buyer from ~~this stock issuance~~the Laundry Leases and any other revenue as specified in Schedule 1.3(c) during the applicable period less the commissions incurred by the Buyer under the Laundry Leases during the applicable period, all as determined in accordance with GAAP. Notwithstanding the foregoing, if there is a Change In Control at any time prior to the ~~market price~~ third anniversary of the ~~issuers common stock~~Closing, ~~as quoted on~~ then the ~~OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares~~ Earn-Out Payment shall ~~be delivered~~ automatically become due and payable to the Seller so (regardless of the Seller having met any such Net Revenue Targets), with such Earn-Out Payment to be paid to Seller, by wire transfer pursuant to wiring instructions provided by Seller, within 5 days of the Change In Control. The Buyer shall calculate the Net Revenue under this Section 1.3(c) in good faith and with fair dealings and shall deliver such calculation to the Seller together with all supporting documentation upon which the Buyer relies in making such calculation and such other documentation as the Seller may reasonably request by July 20, 2010. For purposes of this Section 1.3(c), the term “Change In Control” means (i) an acquisition subsequent to ~~constitute~~ the date of this Agreement by any person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of a ~~dollar value in the 2.~~majority (i.e., greater than 50%) In of either (A) the ~~event that the~~ then outstanding shares of common stock of the ~~issuer is quoted on~~ Buyer or ▇▇▇-▇▇▇▇ Corporation or (B) the ~~Pink Sheets~~combined voting power of the then outstanding voting securities of the Buyer or ▇▇▇-▇▇▇▇ Corporation entitled to vote generally in the election of directors; or (ii) the consummation of (A) a plan of complete liquidation of the Buyer or ▇▇▇-▇▇▇▇ Corporation, ~~and is not quoted on~~ (B) an agreement for the ~~OTCBB~~sale or disposition of all or substantially all of the assets of Buyer or ▇▇▇-▇▇▇▇ Corporation, or (C) a plan of merger or consolidation of Buyer or ▇▇▇-▇▇▇▇ Corporation with any other ~~regional~~ corporation where the shareholders of Buyer or ~~national stock exchange~~▇▇▇-▇▇▇▇ Corporation, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and immediately prior to the ~~180th day subsequent to~~ consolidation or merger, did not, immediately after the ~~execution of this EPA~~consolidation or merger, ~~then four hundred thousand (400,000) additional~~ beneficially own, directly or indirectly, shares ~~of common stock shall be issued and delivered by Purchaser or~~ representing in the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date aggregate more than 50% of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common voting shares of the ~~mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability~~ corporation issuing securities in the ~~open market, to be paid to the Seller within five~~ consolidation or merger (~~5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares,~~ or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if ~~that document were the original document upon which the transactions described herein were based~~any).

Appears in 1 contract

Sources: Asset Purchase Agreement (Mac-Gray Corp)

Purchase Price. ~~The Purchaser~~ (a) Subject to the terms of this Agreement, as full consideration for the sale, transfer, conveyance, assignment and delivery of the Purchased Assets and the execution and delivery of the Transaction Documents by Seller to Buyer, Buyer shall pay to ~~the~~ Seller ~~an amount equal to three million two hundred sixty thousand dollars~~ Twenty-Two Million Dollars ($~~3,260,000) in~~ 22,000,000), as such sum may be adjusted pursuant to the ~~following manner: A. The number~~ provisions of ~~common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ this Agreement (the "~~mergee~~Purchase Price"). The Purchase Price, plus or minus prorations and other adjustments pursuant to this Agreement, shall be paid to Seller as follows: (i) on the Effective Date, Buyer shall deposit with the Escrow Agent a sum equal to Twelve Million Six Hundred Thousand Dollars ($12,600,000) (the "Initial Payment"), ~~issued by Purchaser~~ in immediately available U.S. funds. On the Closing Date the Initial Payment, less the Escrow Percentage (which shall be ~~eight hundred sixteen thousand (816,000~~remain deposited with the Escrow Agent as described in Section 2.04(b)) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to Seller and credited against the Purchase Price, and all interest accrued on the Initial Payment while deposited with the Escrow Agent shall be delivered to Buyer; (ii) no later than February 28, 2007, Buyer shall pay to Seller so Four Million Two Hundred Thousand Dollars ($4,200,000), less the Escrow Percentage (which shall be deposited with the Escrow Agent as described in Section 2.04(b)), by wire transfer of immediately available U.S. funds, provided that Buyer may elect to ~~constitute a dollar value~~ prepay such amount at any time, in ~~the~~whole or in part, without premium or penalty; 2.(iii) In no later than March 31, 2007, Buyer shall pay to Seller Four Million Two Hundred Thousand Dollars ($4,200,000), less the ~~event~~ Escrow Percentage (which shall be deposited with the Escrow Agent as described in Section 2.04(b)), by wire transfer of immediately available U.S. funds, provided that Buyer may elect to prepay such amount at any time, in whole or in part, without premium or penalty; and (iv) within ten (10) Business Days following the ~~common stock~~ occurrence of the ~~issuer is quoted on~~ Earn-Out Event, Buyer shall pay to Seller One Million Dollars ($1,000,000) by wire transfer of immediately available U.S. funds; provided, however, that if the ~~Pink Sheets~~Earn-Out Event does not occur, then Buyer shall have no obligation to make such payment to Seller and the Purchase Price shall be reduced accordingly. (b) Without limiting the generality of Sections 2.04(a)(i) through (iii), as security for the indemnification obligations of Seller under this Agreement, concurrently with any payment made pursuant to Sections 2.04(a)(i) through (iii) Buyer shall deliver by wire transfer of immediately available U.S. funds to SunTrust Bank, a Georgia banking corporation, as escrow agent (the "Escrow Agent"), and ~~is not quoted on~~ Escrow Agent shall retain, ten percent (10%) (the ~~OTCBB, or any other regional or national stock exchange, on~~ "Escrow Percentage") of each such payment of Purchase Price payable by Buyer under Sections 2.04(a)(i) through (iii) (each an "Escrow Payment"). The Escrow Payments shall be held in escrow (the ~~date~~ "Escrow") in accordance with the terms of the ~~effectiveness~~ Escrow Agreement. For the avoidance of ~~the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA~~doubt, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser on or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with after the Closing Date of the ~~EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars~~ aggregate Escrow Payments ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereaftercollectively, the "~~Parent~~Escrow Amount"~~), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations~~ ) held in escrow shall not exceed ten percent (10%) of the ~~Purchaser shall accede~~ aggregate Purchase Price that would have been paid to ~~the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The~~ Seller, ~~at its sole option and discretion, may require~~ absent the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were basedEscrow Payments.

Appears in 1 contract

Sources: Asset Purchase Agreement (QLT Inc/Bc)

Purchase Price. ~~The Purchaser shall pay to~~ IMSI and ComputerEasy hereby agree that the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB full purchase price (the "~~mergee~~PURCHASE PRICE")) to be paid by IMSI to ComputerEasy for the sale, ~~issued~~ transfer, conveyance and assignment of all the Purchased Assets to IMSI is $686,250.00 to be paid by ~~Purchaser~~ IMSI to ComputerEasy. Same shall consist of the amounts set forth below, and shall be ~~eight hundred sixteen thousand~~ paid in the manner and at the time set forth below: (~~816,000~~a) ~~shares~~ ComputerEasy ackowledges that IMSI has already paid ComputerEasy $275,000.00 (the "~~mergee shares), subject to adjustment based upon a pari pasu conversion into~~ PAID AMOUNT") as part of the ~~mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable~~Purchase Price. (b) At the Closing, ComputerEasy shall deliver all Purchased Assets not previously delivered and any necessary assignments and/or documentation as attached herewith and set forth herein, and IMSI shall simultaneously deliver a cashier's check in the amount of $411,250.00 to ComputerEasy. (c) As additional purchase price, if sales of the Products exceeds $10 million in the period from September 1~~.) One Hundred Eighty~~ , 1995 through December 31, 1998, an additional $200,000.00 will be payable by IMSI to Forte Computer Easy within thirty (~~180~~30) days ~~from this~~ after the end of the [month/quarter] in which sales have exceeded such figure. IMSI shall forward to ComputerEasy an annual sales account pertinent to those Products, certified by IMSI's Chief Financial Officer within 30 days after the end of each annual audit period. (d) IMSI does hereby grant ComputerEasy a stock ~~issuance, if the market~~ option to acquire 5,000 shares of Common Stock of IMSI at an exercise price of $9.00 per share which was the ~~issuers common stock~~closing bid of the Common Stock on August 30, 1995 as ~~quoted on~~ reported by the ~~OTCBB~~National Quotation Bureau, ~~or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share~~Inc., a ~~sufficient number~~ copy of ~~additional shares shall~~ which is attached hereto and made a part hereof. Such option may be ~~delivered to the Seller so as to constitute a dollar value~~ exercised in ~~the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB,~~ whole or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, in part at any time ~~subsequent~~ or times after the Closing. IMSI and ComputerEasy agree to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following execute such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well further documents as the other ~~payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller~~ party shall ~~be applicable~~ reasonably request to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.give effect

Appears in 1 contract

Sources: Purchase Agreement (Forte Computer Easy Inc)

Purchase Price. ~~The~~ (a) In consideration of the sale and transfer of the Shares and the sale and transfer of the Conveyed Assets, Purchaser shall pay to Pfizer, as agent for the Seller Corporations (or to Pfizer's Affiliates as Pfizer may on behalf of the Seller Corporations direct in the written transfer instructions hereinafter referred to), an aggregate amount ~~equal to three million two hundred sixty thousand dollars~~ of One Billion Six Hundred Fifty Million Dollars ($~~3,260,000~~1,650,000,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Aggregate Payment"), ~~issued~~ in immediately available funds, by wire transfer in accordance with written instructions given by Pfizer to Purchaser not less than two (2) Business Days prior to the Closing, which consideration shall be ~~eight hundred sixteen thousand~~ subject to the purchase price adjustment provided for in Section 2.8 and shall be allocated as described below." (~~816,000~~b) ~~shares~~ In consideration of the sale and transfer of the Shares, Purchaser agrees to purchase from the Stock Selling Corporations the Shares for an aggregate purchase price of Five Hundred Twenty-Four Million One Hundred Eighty Thousand Dollars ($524,180,000.00), allocated among the Shares as described in Schedule 2.9 (the "~~mergee shares~~Share Purchase Price"). (c) In consideration of the sale and transfer of the Conveyed Assets, the Purchaser agrees to purchase from each Asset Selling Corporation the Conveyed Assets owned by such Asset Selling Corporation for an aggregate purchase price of One Billion One Hundred Twenty-Five Million Eight Hundred Twenty Thousand Dollars ($1,125,820,000.00), ~~subject to adjustment based upon a pari pasu conversion into~~ allocated among the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, Asset Selling Corporations as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee Section 2.9 (the "~~mergee closing shares~~Asset Purchase Price" and, together with the Share Purchase Price, the "~~) that~~ Aggregate Purchase Price")." 2.2 The last sentence of Section 2.9 shall be deleted and replaced by the following: "If after all other adjustments to the Allocation are ~~free of~~ made, the Allocation with respect to any ~~restrictions as to their transferability~~ Asset Selling Corporation or ~~marketability~~ Conveyed Subsidiary (or Subsidiary), when expressed in the ~~open market~~relevant local currency at the rate of exchange used to determine Final Working Capital, ~~to be paid to~~ is less than the ~~Seller within five (5) days~~ local currency net book value, determined in accordance with GAAP, of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars~~ Conveyed Assets of such Asset Selling Corporation or the assets of such Conveyed Subsidiary (~~$510,000~~or Subsidiary) ~~in market value,~~ as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the ~~Purchaser shall immediately file an S-8 registration statement registering~~ Allocation with respect to such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Asset Selling Corporation or Conveyed Subsidiary (or Subsidiary) shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries adjusted so that it is equal to such ~~contract purchaser so as~~ local currency net book value converted at the rate of exchange used to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions determine Final Working Capital and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot a corresponding adjustment will be made, ~~for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due~~ as to the ~~Seller shall emanate from~~ first $3,000,000, to the ~~next subsequent sale of such manufactured equipment by the Purchaser~~ Allocation with respect to ~~its contract purchaser(s), at its next delivery of such equipment~~Howmedica Inc., and ~~a penalty of twenty-five thousand ($25,000) dollars shall be added~~ as to ~~the MPC, attached herein as Exhibit B of this Agreement, at the time~~ any balance in excess of the first ~~deliveries of contract equipment purchased~~ $3,000,000, to the Allocation with respect to Howmedica GmbH." 2.3 Schedule 2.9 shall be amended and replaced in its entirety by the ~~contract purchaser that did not include the piece(s~~Schedule 2.9 attached hereto as Annex A. 2.4 Section 4.2(c) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to ~~include a greater amount of Equipment, up to $20,000,000~~ read in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, its entirety as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.follows:

Appears in 1 contract

Sources: Stock and Asset Purchase Agreement (Stryker Corp)

Purchase Price. ~~The Purchaser~~ (a) Subject to Section 1.02(b) hereof, the purchase price (the “Purchase Price”) for the New EMG Shares shall ~~pay to~~ be $128,266,000, in the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ aggregate (based on a per share purchase price of ($~~3,260,000~~21,644.62), payable as follows: (i) $68,266,000 in cash (such amount herein referred to as the “Cash Consideration”), (ii) a Promissory Note in the form attached hereto as Exhibit A (the “Promissory Note”) in the ~~following manner: A. The number~~ original principal amount of ~~common~~ $20,000,000 and (iii) 8,602,151 shares of the ~~Purchaser~~Class A Stock, ~~convertible into common~~ par value $1.00 per share (the “Ampal Stock”), of Ampal-American Israel Corporation (“Ampal”) (having an aggregate value of $40,000,000, (such shares of ~~a reporting corporation~~ Ampal Stock herein referred to as the “Stock Consideration”). The Cash Consideration shall be payable in ~~a current status with its SEC filing requirements and currently quoted on~~ immediately available funds to the ~~OTCBB~~ account of Seller designated (such designation to be no later than two (2) days prior to the ~~"mergee")~~Closing Date) in writing by Seller to Purchaser. The Promissory Note will be delivered at the Closing. Subject to the provisions of Section 9.02, ~~issued~~ the Stock Consideration shall be paid by the delivery to Seller by Purchaser ~~shall be eight hundred sixteen thousand (816,000) shares (~~of the ~~"mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and~~ requisite number of validly issued by shares of Ampal Stock in the name of Seller or its designee, at such time that Ampal has received all Purchaser ~~and shall be fully paid and non-assessable~~Approvals necessary, including any required approval of the shareholders of Ampal, for the delivery of the stock consideration to the Seller. ~~1.) One Hundred Eighty~~ (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.b) In the event that from the ~~common stock~~ date hereof through August 1, 2008 the Seller enters into a binding agreement for the sale, assignment or disposition, other then with respect to an Affiliate (each of said acts being referred to as a “Transfer”) of some or all of the ~~issuer~~ shares EMG stock then held by the Seller (the “Merhav Shares”) to a third party and the purchase price per share (the “Third Party Per Share Purchase Price”) for such Merhav Shares is ~~quoted on~~ lower than the ~~Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date~~ Purchase Price per share of the ~~effectiveness~~ New EMG Shares hereunder (the “Per Share Purchase Price”), then the Per Share Purchase Price shall be reduced to the Third Party Per Share Purchase Price and upon closing of the ~~first registration~~ Transfer of ~~any~~ such Merhav Shares to such third party, the Seller shall either, at the election of Seller, (i) transfer to Purchaser an amount of EMG Stock having a value equal to the product of (x) the excess of the ~~mergee shares~~Per Share Purchase Price over the Third Party Per Share Purchase Price multiplied by (y) the sum of (1) New EMG Shares and (2) the August Shares; or (ii) deliver to Purchaser an amount, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, ~~by wire transfer~~equal to the amount specified in (i) above. In the event the Transfer is for consideration other than cash, ~~coincident with~~ or is in such a structure or type which is substantially different from the ~~payment of pre-closing~~ transaction contemplated hereby, the Parties shall negotiate in good faith for not more than 15 days to mutually agree upon a fair and ~~closing expenses, for~~ correct comparison between the ~~payment of that portion~~ Per Share Purchase Price and the Third Party Per Share Purchase Price as a result of the ~~Purchase Price representing deposits~~ non-cash consideration. In the event the Parties are unable to ~~secure~~ reach such mutual agreement in such 15 day period, then the ~~Equipment, out~~ adequate value of the ~~proceeds of any loan or equity arranged~~ Third Party Per Share Price shall be determined by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇, whose determination shall bind the ~~Purchaser for any purpose~~Parties. ~~C. The Purchaser shall cause two hundred four thousand~~ (~~204,000~~c) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that from the ~~Purchaser~~date hereof through August 1, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to 2008 the Seller by enters into Transfer of some or all of the ~~fifth (5th ) day subsequent~~ Merhav Shares to a third party and the ~~Closing Date~~Third Party Per Share Purchase Price for such Merhav Shares is lower than the Purchase Price per share of the Initial Shares, then the ~~Purchaser~~ Per Share Purchase Price shall ~~immediately file an S-8 registration statement registering such shares for~~ be reduced to the ~~services~~ Third Party Per Share Purchase Price and upon closing of the ~~principals and agents~~ Transfer of such Merhav Shares to such third party, the Seller shall either, at the election of Seller, (i) transfer to Purchaser an amount of EMG Stock having a value equal to the product of (x) the excess of the ~~Seller~~Per Share Purchase Price over the Third Party Per Share Purchase Price multiplied by (y) the number of Initial Shares; or (ii) deliver to Purchaser an amount, ~~as designated solely by the Seller~~in cash, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid equal to the ~~Seller~~ amount specified in ~~a manner identical to, and in addition to, the terms and conditions described in Sections 1.02~~ (~~F), (G~~i) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaserabove. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event ~~that~~ the ~~payment~~ Transfer is for consideration other than cash, or is in such a structure or type which is substantially different from the transaction contemplated hereby, the Parties shall negotiate in good faith for not more than 15 days to mutually agree upon a fair and correct comparison between the ~~Seller cannot be made, for any reason, under~~ Per Share Purchase Price and the ~~terms and conditions set forth~~ Third Party Per Share Purchase Price as a result of the non-cash consideration. In the event the Parties are unable to reach such mutual agreement in ~~sub-paragraph 1.02 (F)~~such 15 day period, then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the adequate value of the ~~original MPC, as well as the other payment provisions contained in sub-Paragraphs~~ Third Party Per Share Price shall be determined by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇, ~~▇, ▇, ▇, ▇,▇,▇ and H above~~whose determination shall bind the Parties. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Ampal-American Israel Corp)

Purchase Price. The purchase price (the "Purchase Price") to be paid by the Purchaser ~~shall pay~~ to the Seller ~~an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in~~ for the ~~following manner~~Acquired Assets shall be: ~~A. The number of common~~ (a) 275,000 shares of the Purchaser's common stock, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ par value $0.001 per share (the "~~mergee~~Stock"~~), issued~~ ) have been delivered to each of Tirella and ▇▇▇▇▇▇; (b) An employment agreement executed between the Purchaser and Tirella in the form described in Exhibit B attached hereto and incorporated herein by ~~Purchaser shall be eight hundred sixteen thousand (816,000) shares~~ reference for all purposes (the "~~mergee shares~~Tirella Employment Agreement")~~, subject to adjustment based upon a pari pasu conversion into~~ ; (c) An employment agreement executed between the ~~mergee's shares. All Shares issued to Seller shall be duly and validly issued by~~ Purchaser and ~~shall be fully paid~~ ▇▇▇▇▇▇ in the form described in Exhibit C attached hereto and ~~non-assessable.~~incorporated herein by reference for all purposes (the "▇▇▇▇▇▇ Employment Agreement"); 1.(d) ~~One Hundred Eighty (180) days from this stock issuance, if the market price~~ Eight percent of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common outstanding shares of the ~~mergee~~ capital stock in a newly formed subsidiary of the Purchaser to ▇▇▇▇▇▇ (e) Twelve percent of the issued and outstanding shares of the capital stock in a newly formed subsidiary of the Purchaser to Tirella; and (f) The sum of $80,000 in cash (the "~~mergee closing shares~~Cash Payment") ~~that are free of any restrictions as to their transferability or marketability in the open market,~~ to be paid to the Seller ~~within five~~ as follows: (5i) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the ~~Closing Date a contract providing for such payment to~~ 90th day following the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B execution of this Agreement, at the ~~time of the first deliveries of contract equipment purchased by the contract~~ purchaser ~~that did not include the piece(s) titled to the Seller. H. In the event that the payment to~~ shall pay the Seller ~~cannot be made, for any reason, under~~ the ~~terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars (~~sum of $300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount20,000, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS cash; (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of ii) following 90 days after the date of this Agreement~~. L. The Seller~~, ~~at its sole option and discretion, may require~~ the Purchaser shall pay the Seller the sum of $60,000 in nine monthly installments of $6,666.66 each, with the first payment to ~~re-execute this EPA, and any and~~ be due when all ~~Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name~~ of the ~~mergee reporting corporation~~following condition occurs: the Acquired Assets are producing at least $100,000 in monthly net revenues (the "Revenue Commitment"). If the Acquired Assets do not initially achieve the Revenue Commitment within 12 months following the date of this Agreement, ~~as if that document were~~ the ~~original document upon which~~ Purchaser shall have no further liability to the ~~transactions described herein were based~~Seller hereunder. The Revenue Commitment is to be determined in accordance with Generally Accepted Accounting Principles.

Appears in 1 contract

Sources: Asset Purchase Agreement (Universal Broadband Communications Inc)

Purchase Price. The ~~Purchaser~~ total purchase price for the Assets (the “Purchase Price”) shall ~~pay~~ be up to $57,530,000 (a portion of which will be in Parent Common Stock, valued as specified herein), of which (i) $15,000,000 in immediately available funds has been paid to Seller as provided in clause (a) below, (ii) $7,500,000 in Parent Common Stock (valued as provided herein) was delivered at Closing to La Salle National Bank Association (the “Escrow Agent”) as provided in clauses (b) and (c) below and shall thereafter be payable to Seller as provided in clauses (c) and (d) below, (iii) $833,334 in immediately available funds has been paid to Seller as provided in clause (e) below, (iv) up to an additional $1,050,000 shall be paid to Seller or its designees as provided in clause (e) below; (v) $480,000 in cash and shares of Parent Common Stock (valued as provided herein), as provided in Section 3.01 of this Amendment No. 1, and (vi) up to an additional $32,666,666 (a portion of which will be in Parent Common Stock, valued as specified herein) shall be contingent consideration, payable as provided in Section 1.09. The Purchase Price shall be payable and/or deliverable as follows: (a) Seller hereby acknowledges and agrees that, on the Closing Date, an amount equal to ~~three million two hundred sixty thousand dollars~~ (i) $~~3,260,000~~14,250,000, was delivered to Seller in immediately available funds (the “Closing Cash Payment”); and (ii) the Deposit, reflecting $750,000 of the Purchase Price, was delivered by the escrow agent to Seller, as provided in Section 1.07; (b) Seller hereby acknowledges and agrees that, as of the Amendment Date, 663,529 Par B Shares have been released from escrow and delivered to Seller, and 1,327,076 Par B Shares are held in escrow by the Escrow Agent, pursuant to the Purchase Price Escrow Agreement, which Par B Shares cumulatively represent $5,000,000 of the Purchase Price; (c) Seller hereby acknowledges and agrees that, on the Closing Date, 1,635,056 shares of Parent Common Stock (the “Par C Shares”), which represent $2,500,000 of the Purchase Price, were delivered to the Escrow Agent. The Par C Shares were issued in the ~~following manner: A. The number of common shares~~ name of the ~~Purchaser~~Escrow Agent as of the Closing, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ are being held by the ~~OTCBB (the "mergee")~~Escrow Agent, issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be ~~fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ voted as directed by the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares Parent. The Par C Shares shall be delivered to ~~the~~ Seller so as follows: (i) one third (1/3) promptly after it is determined on any date on or prior to ~~constitute a dollar value in the 2.) In the event~~ October 31, 2010, that the ~~common stock~~ Designated Website Businesses have achieved at least $6,000,000 in gross revenue over the immediately preceding four consecutive calendar quarters but not including any quarter earlier than the third quarter of 2008; (ii) one third (1/3) promptly after it is determined on any date on or prior to October 31, 2010, that the ~~issuer is quoted~~ Designated Website Businesses have achieved at least $7,000,000 in Net Revenue over the immediately preceding four consecutive calendar quarters but not including any quarter earlier than the third quarter of 2008; and (iii) one third (1/3) on ~~the Pink Sheets~~October 31, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, 2012. If at any time ~~subsequent~~ the Purchaser is managing different websites than those listed on Schedule 1.09(a) as of the date hereof, then the gross revenue amounts in clause (i) and/or the Net Revenue amounts in clause (ii) above shall be adjusted, by good faith negotiation between the parties, to reflect the equitable effect of such modification. The parties hereto shall execute a Joint Instruction to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller Escrow Agent within five (5) ~~days~~ Business Days following the satisfaction of a condition set forth in clauses (i), (ii) and/or (iii) above instructing it in such circumstances to deliver such shares to Seller. (d) after Closing, to Seller from the Escrow Agent pursuant to the Purchase Price Escrow Agreement, the Par B Shares, in twenty-three (23) installments. The first such payment was made on or about the last Business Day of the second full calendar month following the month in which the Closing Date occurred in an amount equal to one-twelfth of the Par B Shares. As of the Amendment Date~~. The~~ , six (6) additional subsequent monthly installments each equal to one twenty-fourth of the Par B Shares have been paid on or about the last Business Day of each subsequent calendar month, and such payments shall be followed by sixteen (16) equal monthly installments to be paid on the last Business Day of each calendar month beginning on the earlier of: (A) the last Business Day of January, 2009; or (B) the last Business Day of the month after the month in which the Purchaser determines that it has earned $3,000,000 in Net Revenue over the immediately preceding two consecutive calendar quarters; provided, that (i) Purchaser’s obligation to make payments and effect deliveries pursuant to this section shall be subject to Purchaser’s right to withhold and/or set off against such payments or deliveries pursuant to Section 1.13 or a Claim made against the ▇▇▇▇▇▇ Guaranty pursuant to Section 1.12, and (ii) Seller may ~~substitute five hundred ten thousand dollars~~ not dispose of or otherwise transfer any Par B Shares it may receive for a period of ninety (~~$510,000~~90) ~~in market value~~days following the Closing; (e) All payments under this Section 1.08(e) shall be designated as “Performance Earn Out Cash Payments.” Seller hereby acknowledges and agrees that, as of the ~~date of the closing~~Amendment Date, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-it has received two (722) ~~days subsequent~~ payments, in an aggregate amount equal to ~~the Closing Date,~~ $833,334. Three (3) additional payments of up to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $~~325,000~~ 350,000 each shall be paid to Seller (in cash or unregistered shares of Parent Common Stock at the ~~Seller in a manner identical to~~Parent’s election, with any such shares valued based upon the VWAP for the last ten (10) trading days of the period after the date on which the applicable Performance Earn Out Cash Payment shall have been deemed earned and ~~in addition to~~payable) with the first payment due within forty-five (45) days following December 31, 2008, the ~~terms~~ second payment due within forty-five (45) days following June 30, 2009 and ~~conditions described~~ the third payment due within forty-five (45) days following December 31, 2009. Notwithstanding the foregoing, (i) Purchaser’s obligation to make payments pursuant to this subsection (e) shall be subject to and conditioned upon successful achievement of the applicable “Targets” specified in ~~Sections 1.02 (F~~Schedule 1.08(e), (Gii) no amounts will be paid unless and until the applicable Target has been successfully achieved not later than June 30, 2010; and (~~H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000~~iii) in ~~increments under terms and conditions as described in~~ the ~~Money Purchase Contract ("MPC"~~event any Target is not successfully achieved for the period for which it is scheduled on Schedule 1.08(e), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the related amount shall be suspended until such time, if any, as the Target is met, but any payment for which any applicable Target has not been met by June 30, 2010, shall be forfeited; (f) Up to $~~300,000 payment~~32,666,666 in additional consideration (all or a portion of which shall be payable in Parent Common Stock, ~~plus a penalty of fifty thousand ($50,000~~valued as specified herein) ~~dollars, is~~ shall be paid to Seller pursuant to Section 1.09; and (g) The Seller and the ~~Seller. I. In~~ Purchaser agree to renegotiate the ~~event that~~ Targets in good faith prior to September 30, 2008, and to amend Schedule 1.08(e) to reflect any revised Targets agreed to by each of them, but the ~~Equipment sold~~ existing Targets shall remain in effect until any such revised Targets are so agreed by the ~~Seller to the Purchaser on the Closing Date has an appraised fair market value~~ parties in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H abovewriting. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Zvue Corp)

Purchase Price. The ~~Purchaser~~ aggregate purchase price to be paid for the Shares shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Thirteen Million Six Hundred Eighty Thousand US Dollars (~~$3,260,000~~US$13,680,000) ~~in the following manner: A. The number of common~~ plus One Million One Hundred Thirty Eight Thousand Five Hundred Twenty (1,148,000) shares of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Buyer Stock (the "~~mergee~~Purchase Price")~~, issued by Purchaser~~ . The Purchase Price shall be ~~eight hundred sixteen thousand~~ allocated among the Companies and further allocated among the Sellers in proportion to their respective holdings of the Shares, with each Seller to receive the cash amount and number of shares of Buyer Stock set forth opposite such Seller's name on Schedule 2.2.1. --------------- The Purchase Price shall be payable as follows: (~~816,000~~a) US$13,680,000 shall be paid on the Closing Date, by wire transfer of US$11,622,852 to ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ & Partners for the benefit of each Seller other than ▇▇▇ ▇▇▇▇▇▇▇▇, and the sum of US$2,057,148 shall be paid by wire transfer to the account of ▇▇▇ ▇▇▇▇▇▇▇▇; (b) 1,038,000 shares (of the ~~"mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares~~ Buyer Stock issued to ~~Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares Sellers shall be delivered to the ~~Seller so as to constitute a dollar value in the 2.~~Sellers' Agent at Closing, and (c) ~~In the event that the common stock~~ 110,000 shares of the ~~issuer is quoted on~~ Buyer Stock issued to the ~~Pink Sheets~~Principal Sellers shall be delivered by the Buyer to U.S. Bank Trust National Association, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for who shall hold such shares ~~is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution~~ in escrow for a period of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately 18 months following ~~such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with~~ the Closing Date in accordance with the Post-Closing Escrow Agreement, which will be executed and delivered at the Closing. The parties acknowledge that the Purchase Price has been calculated, in part, based upon the Purchaser's expectation that the trade payables of the ~~EPA~~Companies as of May 31, 2000 shall not exceed IR(Pounds)200,000. ~~Other penalties~~ Sellers shall cause consolidated Accounts of the Companies as of May 31, 2000 to be prepared and submitted to Buyer not later than June 21, 2000. Each Principal Seller warrants to the Buyer that such Accounts shall be true, correct and complete in all respects of said date. To the extent the trades payables as reflected on such May 31, 2000 consolidated Accounts exceed IR(Pounds)200,000 then each Seller agrees promptly to reimburse ( as a Purchase Price adjustment) to the Buyer (or ~~sanctions described in~~ such of the ~~RRA may also apply. B. The Purchaser~~ Companies as Buyer shall ~~pay sixty thousand dollars ($60,000~~nominate) in cash, ~~by wire transfer, coincident with~~ the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer amount of such ~~shares not qualify to file an S-8 registration for such shares~~excess, ~~then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below~~if any. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Clarus Corp)

Purchase Price. (a) On the terms and subject to the conditions set forth in this Agreement, and subject to adjustment, if any, as provided by Section 2.6(a)(ii) and Section 2.6(a)(iii), the purchase price for the Transferred Assets that Buyer will pay to Seller is One Million Five Thousand Dollars ($1,005,000) and up to Two Hundred Thousand (200,000) shares of the Buyer’s common stock, par value $0.10 per share (the “Ultralife Common Stock”) (collectively, the “Purchase Price”). The ~~Purchaser~~ Purchase Price will be paid as follows: (i) On the terms and subject to the conditions set forth in this Agreement, at Closing, Buyer shall pay to Seller by wire transfer of immediately-available funds in the amount of Nine Hundred Thirty Thousand and no/100 Dollars ($930,000); (ii) On the terms and subject to the conditions set forth in this Agreement, including Buyer’s right of offset pursuant to Section 7.3, and following the notice and cure provisions of Section 7.4, six months from the Closing Date Buyer shall pay to Seller by wire transfer of immediately-available funds in the amount of Seventy Five Thousand and no/100 Dollars ($75,000) (the “Holdback Amount”) provided that the Seller ~~an amount equal~~ and no Selling Shareholder has violated any material terms of this Agreement or the Closing Documents and further provided that Buyer does not have the right to ~~three million two hundred sixty thousand dollars ($3,260,000) in~~ offset the ~~following manner: A. The number~~ Holdback Amount pursuant to Section 7.3. Subject to the notice and cure provisions of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuanceSection 7.4, if the ~~market price of the issuers common stock, as quoted on the OTCBB,~~ Buyer in good faith determines that Seller or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the ~~mergee shares, or on the date that an exemption from registration for such shares is available to the~~ Selling Shareholders ~~pursuant to the RRA, at~~ has violated any ~~time subsequent to the execution~~ material terms of this ~~EPA, and prior to the 180th day subsequent to the execution of this EPA~~Agreement, then ~~four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or~~ Buyer will not have to pay Seller the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that Holdback Amount portion of the Purchase ~~Price representing deposits~~ Price (iii) On the terms and subject to ~~secure~~ the ~~Equipment~~conditions set forth in this Agreement, ~~out~~ including Buyer’s right of offset pursuant to Section 7.3, following the ~~proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser~~ Closing, Buyer shall ~~cause two hundred four thousand (204,000) common~~ pay to Seller shares of Ultralife Common Stock if certain Sales targets are met during the ~~mergee~~ Measuring Period, as measured at the end of each fiscal year (the ~~"mergee closing shares"~~“Sales Payments”), as follows: (A) Thirty Thousand (30,000) shares of Ultralife Common Stock shall be granted to Seller on the first occasion that ~~are free~~ annual Sales during the Measuring Period exceed Ten Million Dollars ($10,000,000); (B) Forty Thousand (40,000) shares of ~~any restrictions as~~ Ultralife Common Stock shall be granted to ~~their transferability or marketability in~~ Seller on the ~~open market,~~ first occasion that annual Sales during the Measuring Period exceed Fifteen Million Dollars ($15,000,000); (C) Sixty Thousand (60,000) shares of Ultralife Common Stock shall be granted to Seller on the first occasion that annual Sales during the Measuring Period exceed Twenty Million Dollars ($20,000,000); (D) Seventy Thousand (70,000) shares of Ultralife Common Stock shall be ~~paid~~ granted to Seller on the first occasion that annual Sales during the Measuring Period exceed Twenty Five Million Dollars ($25,000,000); (E) Notwithstanding anything herein to the contrary, in no event shall the aggregate number of shares of Ultralife Common Stock issuable as Sales Payments exceed 200,000 shares. In the event of a stock split or other re-capitalization event affecting the Ultralife Common Stock, the number of shares issuable as Sales Payments shall be adjusted accordingly; (F) Any Sales Payments due from Buyer to Seller hereunder shall be made within ~~five (5)~~ ten days of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as~~ completion of the ~~date~~ audit by Buyer’s independent public accounting firm of the ~~closing,~~ Books and Records of ~~any registered shares, or shares exempt from registration, of another corporation acceptable to~~ Buyer and its Affiliates during the ~~Seller in lieu of the mergee's closing shares.~~Measuring Period; and D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) Subject to the notice and ~~(H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000)~~ cure provisions of Section 7.4, Buyer will only make the Sales Payments described above to Seller if the Buyer in ~~increments under~~ good faith determines that neither Seller nor any Selling Shareholder has violated any material terms of this Agreement or the Closing Documents. Subject to the notice and ~~conditions as described~~ cure provisions of Section 7.4, if the Buyer in good faith determines that Seller or any of the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B~~ Selling Shareholders has violated any material terms of this Agreement, then Buyer will not have to pay Seller any Sales Payments after the occurrence of such violation. F. (iv) The ~~Purchaser shall issue cash payment totaling three hundred thousand dollars (~~following illustrates how the Sales Payments are earned. If Sales were $~~300,000)~~12,000,000 during the fiscal year ending on December 31, ~~by wire coincident with Purchaser's receipt of such funds as described herein~~2009, ~~emanating from~~ $21,000,000 during the ~~first sales contract(s) payable to~~ fiscal year ending on December 31, 2010, $22,000,000 during the ~~Purchaser from~~ fiscal year ending on December 31, 2011 and $26,000,000 during the ~~contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall~~ fiscal year ending on December 31, 2012, then (1) ~~provide~~ Buyer would issue to Seller 30,000 shares of Ultralife Common Stock for the ~~Seller~~ fiscal year ending on December 31, 2009 because the ~~Closing Date a contract providing for such payment to~~ $10,000,000 threshold was satisfied during the ~~Seller and for its obligation to title such manufactured equipment to the Seller~~Measuring Period; (2) ~~title such piece(s)~~ Buyer would issue to Seller 100,000 shares of ~~manufactured equipment to~~ Ultralife Common Stock for the ~~Seller~~ fiscal year ending December 31, 2010 because both the $15,000,000 and the $20,000,000 Sales thresholds would have been satisfied during the ~~manufacturing process~~Measuring Period; (3) ~~include~~ Buyer would not issue any shares of Ultralife Common Stock to Seller for the fiscal year ending on December 31, 2011 because the $10,000,000, $15,000,000 and $20,000,000 Sales thresholds would have been already satisfied during the Measuring Period and the additional Sales threshold (i.e., $25,000,000) would not have been satisfied during such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Sellerperiod; and (4) ~~offer all~~ Buyer would issue to Seller 70,000 shares of Ultralife Common Stock for the ~~same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers~~ fiscal year ending on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be madeDecember 31, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of 2012 because the $~~300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to~~ 25,000,000 threshold was satisfied during the ~~Seller~~Measuring Period. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Ultralife Corp)

Purchase Price. ~~The Purchaser shall pay~~ Notwithstanding anything to the ~~Seller~~ contrary herein or anywhere else in the Ancillary Agreements, the aggregate consideration to be received by the Pre-Closing Holders at Closing in connection with the transactions contemplated herein (after implementing all steps set forth in Section 2.2(b)), including in exchange of all debt and equity securities of the Company (including the Investor Loan Note, the Manager Loan Note, the Excess Debt Obligations and the Redemption, but excluding any debt securities or Indebtedness incurred pursuant to Section 5.1(a)(vi) up to the amount of the Initial Debt Basket), shall consist of, (i) the Company Equity Value apportioned between cash and NewCo Common Shares in the following manner: (x) cash in an amount equal to ~~three million two hundred sixty thousand dollars~~ the sum of (~~$3,260,000~~I) the Shareholder Debt and Preference Share Repayments to be distributed in accordance with the ~~following manner: A. The~~ provisions of Section 2.2(b) and (II) cash in an amount, if any, used to repurchase NewCo Common Shares in accordance with Section 2.2(b)(vi)(y)(B) and Section 2.2(b)(vii)(B) (the foregoing amount under this clause (x), the “Aggregate Cash Consideration”) and (y) a number of ~~common shares of~~ NewCo Common Shares equal to the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ quotient obtained by dividing (1) the ~~OTCBB~~ Company Equity Value minus the Aggregate Cash Consideration by (2) $10.00 (the ~~"mergee"), issued by Purchaser shall be eight hundred sixteen thousand~~ “Aggregate Stock Consideration”) and (~~816,000~~ii) ~~shares (the "mergee shares), subject~~ such number of Restricted Shares up to ~~adjustment based upon a pari pasu conversion into the mergee's shares. All~~ 11,618,401 Restricted Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions ~~described~~ of Exhibit A. Notwithstanding anything to the contrary herein or anywhere else in ~~Sections 1.02 (F~~the Ancillary Agreements, immediately after the Closing and upon completion of the Redemption and all other steps set forth in Section 2.2(b), ~~(G)~~ the only issued and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B outstanding Equity Interests of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable NewCo that were issued to the ~~Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries~~ Pre-Closing Holders shall be that number of ~~one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide~~ NewCo Common Shares equal to the ~~Seller on the Closing Date a contract providing for~~ Aggregate Stock Consideration and such ~~payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s)~~ number of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser Restricted Shares issued pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions ~~set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale~~ of ~~such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment~~Exhibit A, and ~~a penalty~~ the only issued and outstanding Equity Interests of ~~twenty-five thousand ($25,000) dollars~~ the Company shall be ~~added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased~~ shares received by ~~the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth~~ NewCo in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger connection with the ~~mergee, or such Parent~~Pre-Closing Reorganization. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Business Combination Agreement (dMY Technology Group, Inc. II)

Purchase Price. The ~~Purchaser~~ purchase price payable by the Optionee to the Optionor to exercise the Option will be as follows: (a) the Optionee shall pay to the ~~Seller an amount equal to three million two hundred sixty~~ Optionor, or any nominee that the Optionor may direct, the sum of eighty-five thousand dollars ($~~3,260,000~~85,000), of which, the aggregate sum of fifty thousand dollars ($50,000) ~~in the following manner: A. The number of common shares~~ shall immediately be utilized to exercise one million (1,000,000) of the ~~Purchaser~~Existing Warrant Shares held in Optionor’s name, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ and ~~currently quoted on~~ the ~~OTCBB~~ remaining thirty-five thousand dollars (~~the "mergee"), issued by Purchaser~~ $35,000) shall be ~~eight~~ payable within thirty (30) days following the date of this Agreement; (b) upon signing of this Agreement, the Optionee shall issue to the Optionor, or any nominee that the Optionor may direct: (i) one million five hundred ~~sixteen~~ thousand (~~816,000~~1,500,000) common shares (the "~~mergee shares~~Consideration Shares") in the capital of the Optionee in the manner noted in Section 2.3 below; and (ii) one million five hundred thousand (1,500,000) common share purchase warrants (each a "Warrant" and collectively the "Warrants"), ~~subject~~ whereby each Warrant shall entitle the holder to ~~adjustment based upon~~ purchase one common share of the Optionee at a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of $0.15 for a period of two (2) years from the ~~issuers common stock~~date of this Agreement. Notwithstanding the foregoing, ~~as quoted on~~ the ~~OTCBB~~Optionee shall have the right, ~~or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered~~ upon written notice to the ~~Seller so as~~ Optionor, to ~~constitute a dollar value~~ force the Optionor to exercise the Warrants in ~~the 2.) In~~ the event that the moving average price of a share of Optionee’s common stock reaches or exceeds thirty cents ($0.30) for a period of ~~the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB,~~ sixty-five (65) consecutive trading days or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuermore, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged quoted by the ~~Purchaser for any purpose~~O▇▇. ~~C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee~~ ▇▇ or such other exchange or automated quotation system as mutually agreed upon (the "~~mergee closing shares~~Forced Conversion"~~) that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date~~). The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event ~~that~~ of a Forced Conversion, the ~~Purchaser, for any reason,~~ Optionor shall ~~fail, within seventy-two~~ have ninety (7290) days ~~subsequent~~ from the time it receives the Forced Conversion notice to ~~the Closing Date, to arrange~~ pay for the ~~shares described in 1.02~~ Warrants before they expire; and (Cc) ~~above~~within forty eight (48) months of signing this Agreement, ~~that are free of any restrictions as to their transferability or marketability in~~ the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Optionee shall be ~~for the payment of services provided~~ required to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three expend no less than two hundred fifty thousand dollars ($~~350,000~~250,000) in ~~increments under terms~~ exploration and ~~conditions as described~~ development expenditures on the Coyote Extension (or, in the ~~Money~~ Optionee's discretion, on the Mhakari Vanderbilt Properties and/or the Mhakari Claims Excluding Vanderbilt Properties), which may be incurred at any time with no minimum obligation in any particular year of such 48 month term. (collectively, the "Purchase ~~Contract ("MPC~~Price"). For greater certainty, attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In in the event that the ~~payment~~ Optionee fails to satisfy the Purchase Price by completing the foregoing cash payments, securities issuances and property expenditures within the above-noted time frame, except as contemplated pursuant to Section 2.5 below, this Agreement shall be deemed to have been terminated, all payments made to-date shall be forfeited to the ~~Seller cannot~~ Optionor, and no interest in the Optioned Assets shall be ~~made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due~~ transferred to the ~~Seller shall emanate from the next subsequent sale~~ Optionee. The Optionee may accelerate any or all of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, payments and any and all ~~Exhibit documents, amendments or addendums,~~ excess payments shall be carried forward and applied as ~~applicable, and any and all ancillary documents pertinent~~ a credit against payments that the Optionee is required to ~~these transactions described herein,~~ make in the ~~name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based~~succeeding period or periods.

Appears in 1 contract

Sources: Option Agreement (Golden Phoenix Minerals Inc)

Purchase Price. (a) The ~~Purchaser shall pay to~~ purchase price of the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is Three Hundred Eleven Million Six Hundred Ninety Six Thousand Twenty Two Dollars ($~~3,260,000~~311,696,022) (the “Purchase Price”). (b) The Purchase Price shall be paid as follows: (1) On or before September 13, 2006, Buyer shall deposit in escrow with First American Title Insurance Company, 1▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, e-mail: k▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ (the “Title Company”) cash or other immediately available funds in the ~~following manner: A. The number~~ amount of ~~common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Twenty Five Million Dollars ($25,000,000) (the ~~"mergee"~~“Initial Deposit”)~~, issued by Purchaser~~ . The Initial Deposit shall be ~~eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion~~ considered fully earned by Seller as consideration for entering into the ~~mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser~~ Agreement and shall be ~~fully paid and non-assessable~~nonrefundable after the Contingency Period except as otherwise expressly provided herein. 1.(2) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, If Buyer delivers a ~~sufficient number of additional shares shall be delivered~~ waiver notice under Section 2.2 to ~~the~~ Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the ~~180th day subsequent~~ expiration of the Contingency Period, on or before September 15, 2006, Buyer shall deposit in escrow with the Title Company an additional amount of Ten Million Dollars ($10,000,000) (the “Additional Deposit”) in cash or other immediately available funds prior to the ~~execution~~ expiration of ~~this EPA, then four hundred thousand~~ the Contingency Period. The Initial Deposit and the Additional Deposit (~~400,000~~if and when the Additional Deposit is deposited by Buyer with the Title Company as provided hereunder) ~~additional shares of common stock~~ are collectively referred to herein as the “Deposit.” The Deposit shall be ~~issued~~ considered fully earned by Seller as consideration for entering into the Agreement and ~~delivered by Purchaser or~~ shall be nonrefundable after the ~~issuer~~Contingency Period except as otherwise expressly provided herein. The Deposit shall be held in an interest bearing account and all interest thereon, ~~as applicable~~less investment fees, ~~to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA~~if any, or shall be ~~eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date~~ deemed a part of the ~~EPA~~Deposit for all purposes hereunder. ~~Other penalties or sanctions described in~~ If the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion sale of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions Property as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Datecontemplated hereunder is consummated, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 Deposit shall be paid to Seller at the ~~Seller~~ Closing (as defined in ~~a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G~~Section 1.2(b)(3) below) and ~~(H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in~~ credited against the ~~Money~~ Purchase ~~Contract ("MPC")~~Price. IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S DEFAULT HEREUNDER, ~~attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000)~~THEN BUYER MAY ELECT, ~~by wire coincident with Purchaser's receipt of such funds as described herein~~AS BUYER’S SOLE AND EXCLUSIVE REMEDY, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall EITHER TO: (1) ~~provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller;~~ TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT, IN WHICH EVENT NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS 6.1, 9.3 AND 9.9 BELOW (PROVIDED, HOWEVER, THAT IN THE EVENT THAT SUCH SELLER DEFAULT IS AN INTENTIONAL, WILLFUL BREACH OF THIS AGREEMENT BY SELLER, BUYER SHALL ALSO BE ENTITLED TO REIMBURSEMENT FOR ACTUAL THIRD-PARTY OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY BUYER IN CONNECTION WITH ITS DUE DILIGENCE REVIEW OF THE PROPERTY IN AN AMOUNT UP TO, BUT NOT TO EXCEED, TWO HUNDRED THOUSAND DOLLARS ($200,000)), OR (2) ~~title such piece(s) of manufactured equipment to the Seller during the manufacturing process;~~ ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. BUYER SHALL NOT HAVE ANY OTHER RIGHTS OR REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLER PRIOR TO CLOSING, AND BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OF A DEFAULT HEREUNDER BY SELLER PRIOR TO CLOSING. IF THE SALE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL, AS SELLER’S SOLE AND EXCLUSIVE REMEDY, RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT PRIOR TO CLOSING, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S OBLIGATIONS UNDER SECTIONS 6.1, 9.3 AND 9.9. (3) ~~include such piece(s~~The balance of the Purchase Price, which is Two Hundred Seventy-Six Million Six Hundred Ninety Six Thousand Twenty Two Dollars ($276,696,022) ~~within~~ (plus or minus the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser prorations pursuant to ~~its contract. Seller shall have no liability whatsoever for any of~~ Section 8.5 hereof and plus or minus the ~~terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions~~ other credits specifically set forth in ~~sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000~~this Agreement) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be ~~added~~ paid to ~~the MPC, attached herein as Exhibit B~~ Seller in cash or by wire transfer of ~~this Agreement,~~ other immediately available funds at the ~~time~~ consummation of the ~~first deliveries of contract equipment purchased by~~ purchase and sale contemplated hereunder (the ~~contract purchaser that did not include the piece(s) titled to the Seller~~“Closing”). H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)

Purchase Price. The ~~Purchaser shall pay to~~ purchase price for the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is One Million Two Hundred Thousand Dollars ($~~3,260,000~~1,200,000) in (the ~~following manner~~“Purchase Price”), payable as follows: ~~A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ (~~the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~a) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within Within five (5) business days after the Effective Date, Buyer shall deposit, as ▇▇▇▇▇▇▇ money, in immediately available funds, the amount of Fifty Thousand Dollars ($50,000.00) (such amount and any interest earned thereon, the "Deposit") into escrow number [Would like to use Chicago Title or Old Republic] (the “Escrow”) opened with , email: ) (the “Escrow Holder”). Buyer may, upon delivery of the Deposit into Escrow, instruct the Escrow Holder to invest the Deposit in an interest-bearing money market or savings account with a national banking association or federally chartered savings and loan association. If the Closing ~~Date~~does not occur, the Deposit shall be returned to Buyer unless the provisions of Section 14 are applicable, in which case the disposition of the Deposit shall be governed by the provisions of Section 14; and (b) In sufficient time for the Close of Escrow to occur on the Closing Date (defined below), Buyer shall deposit into Escrow, in immediately available funds, a sum equal to the Purchase Price less the Deposit, and plus or minus adjustments to account for Seller’s and Buyer’s prorations and costs set forth in this Agreement (the “Net Purchase Price”). Notwithstanding anything to the contrary in this Agreement, a portion of the Deposit, in the amount of One Hundred Dollars ($100) (the “Independent Consideration”) shall be earned by Seller upon execution and delivery of this Agreement by Seller and Buyer. The ~~Purchaser may substitute five hundred ten thousand dollars ($510,000)~~ Independent Consideration represents adequate bargained for consideration for Seller’s execution and delivery of this Agreement and Buyer’s right to have inspected the Property pursuant to the terms hereof. The Independent Consideration is in ~~market value, as of the date of the closing,~~ addition to and independent of any ~~registered shares~~other consideration or payment provided for herein and is nonrefundable in all events. Upon the Closing (defined below), or ~~shares exempt from registration~~earlier termination of this Agreement, ~~of another corporation acceptable to~~ the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 Independent Consideration shall be paid to ~~the Seller in a manner identical to~~Seller, and in ~~addition to~~the case of a termination of this Agreement in which the Deposit is required to be returned to Buyer, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars Deposit shall be ~~added~~ returned to Buyer less the ~~MPC~~Independent Consideration, ~~attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled~~ which shall be paid to ~~the~~ Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement

Purchase Price. The ~~Purchaser~~ purchase price (the Purchase Price) for the Premises shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Three Million Six Hundred Thousand and No/100 ($~~3,260,000~~3,600,000.00) ~~in the following manner~~Dollars, payable as follows: ~~A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ (a) Ten and ~~currently quoted~~ No/100 ($10.00) Dollars on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution signing of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open marketAgreement, to be paid by the delivery of a check drawn on a recognized financial institution (the "Deposit"), receipt of which Deposit is hereby acknowledged. The Deposit shall be held in escrow as hereinafter provided. (b) The balance of the Purchase Price, Three Million Five Hundred Ninety Nine Thousand Nine Hundred Ninety and no/100 ($3,599,990.00) Dollars shall be paid by cash, certified, cashier's, or bank check, or by wire transfer of immediately available federal funds (which funds shall be deemed available upon notice to Seller of a federal wire number therefor) through escrow payable to the order of Seller ~~within five (5) days~~ on the execution, acknowledgement, and delivery of the Deed and Net Lease to Purchaser on the Closing Date~~. The Purchaser may substitute five hundred ten thousand dollars~~ . (~~$510,000~~c) ~~in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable~~ Notwithstanding anything to the ~~Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser~~contrary, ~~for any reason~~if, ~~shall fail, within seventy-two (72) days subsequent to~~ on the Closing Date, ~~to arrange for~~ all of the ~~shares described~~ Construction Completion Certificates, as hereinafter defined, have not been issued in ~~1.02 (C) above~~accordance with the terms of this Agreement, ~~that are free of any restrictions as to their transferability or marketability in the open market~~then, ~~to be paid to the Seller by the fifth (5th ) day subsequent to~~ on the Closing Date, ~~then the~~ Purchaser shall ~~immediately file an S-8 registration statement registering such shares for~~ therefor not have the ~~services~~ right to terminate this Agreement provided that Seller agrees to complete all remaining construction of the ~~principals and agents~~ Premises in accordance with that certain Agreement between First National Bank of the ~~Seller~~South as Owner and ▇▇▇▇▇▇ Construction, Inc. as ~~designated solely by~~ Contractor dated April 25, 2007 and Roebuck Buildings Co., Inc., dated September 7, 2006 (collectively the ~~Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with~~ "Construction Contract") and all ~~applicable rules of the SEC regarding S-8 filings~~other matters necessary and sufficient to, and which will, cause the issuance of all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller Construction Completion Certificates in ~~a manner identical to, and in addition to,~~ accordance with the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this ~~Agreement~~Agreement and the Lease. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Agreement to Sell, Purchase and Lease (First National Bancshares Inc /Sc/)

Purchase Price. The ~~Purchaser~~ aggregate purchase price for the Purchased Interests shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Two Million Two Hundred Fifty Thousand Dollars ($~~3,260,000)~~ 2,250,000), plus the amounts of certain accounts payable and pre-closing expenses, as contemplated in this Agreement, as may be adjusted by Section 1.03 (the ~~following manner~~“Purchase Price”). The Purchase Price shall be paid by Buyer to Seller as follows: ~~A. The number of common shares of~~ (a) Buyer shall cause the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ Escrow Agent to release the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued Deposit to Seller ~~shall be duly and validly issued~~ at Closing by ~~Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ wire transfer of immediately available funds in accordance with the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be wire transfer instructions delivered by Seller to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and Buyer prior to the ~~180th day subsequent~~ Closing. (b) Buyer shall deliver to Seller Five Hundred Thousand Dollars ($500,000) in cash (the “Closing Date Cash Payment”) at Closing by wire transfer of immediately available funds in accordance with the wire transfer instructions delivered by Seller to Buyer prior to the ~~execution~~ Closing. (c) Buyer shall deliver to Seller a secured promissory note, substantially in the form attached hereto as Exhibit A, in the aggregate principal amount of ~~this EPA~~(i) One Million Two Hundred Fifty Thousand Dollars ($1,250,000), ~~then four hundred thousand~~ plus (~~400,000~~ii) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date 50% of the ~~EPA. Other penalties or sanctions described in~~ accounts payable of ESI, PTB Investment Holdings, LLC and Bridgeway Distribution, LLC existing at Closing, if any (the ~~RRA may also apply. B. The Purchaser shall pay sixty thousand dollars~~ “Closing AP Liabilities”) (~~$60,000) in cash~~together, ~~by wire transfer~~the “Closing Note”), ~~coincident with~~ the payment of ~~pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged~~ which will be guaranteed by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller GVB Companies and secured by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, Purchased Interests as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in ~~sub-paragraph 1.02 (F)~~the Closing Note. For the avoidance of doubt, ~~then~~ the ~~three hundred thousand dollars ($300,000) payment due to~~ term “Closing AP Liabilities” shall include any liabilities that existed at Closing but the ~~Seller shall emanate from the next subsequent sale~~ amount of ~~such manufactured equipment~~ which was not fully known by the ~~Purchaser to its contract purchaser(s)~~Company at Closing, ~~at its next delivery of such equipment~~provided, ~~and a penalty of twenty-five thousand ($25,000) dollars shall be added to~~ that the ~~MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased~~ amounts become known by the ~~contract purchaser that did not include the piece(s~~Company no later than thirty (30) ~~titled to the Seller~~days following Closing. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Equity Purchase Agreement (22nd Century Group, Inc.)

Purchase Price. ~~The Purchaser~~ In consideration for Dictaphone’s and the Selling Subsidiaries’ sale, assignment, transfer, conveyance and delivery of the Purchased Assets to the Buyer and the Buyer Affiliates, the Buyer shall pay to Dictaphone on behalf of Dictaphone and the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Selling Subsidiaries a purchase price of U.S. Thirty-Eight Million Five Hundred Thousand Dollars (~~$3,260,000~~US$38,500,000.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the ~~"mergee")~~“Purchase Price”) (provided, ~~issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (~~however, that the ~~"mergee shares),~~ Purchase Price is subject to adjustment ~~based upon a pari pasu conversion into~~ pursuant to Section 2.5(b)) and assume, duly perform and discharge, or cause the ~~mergee's shares. All Shares issued~~ Buyer Affiliates to ~~Seller shall be~~ assume, duly perform and ~~validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance~~discharge, ~~if the market price~~ when due all of the ~~issuers common stock~~outstanding obligations of Dictaphone and its Affiliates under the Assumed Liabilities in accordance with Section 2.3. At the Closing, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid as follows: (x) U.S. Thirty-One Million Six Hundred Fifty Thousand Dollars (US$31,650,000.00) shall be paid directly to Dictaphone, (y) U.S. Three Million Dollars (US$3,000,000.00) shall be deposited in escrow (with any accrued interest earned thereon, the ~~Seller~~ “Indemnification Escrowed Funds”) in ~~a manner identical to,~~ accordance with Section 2.7 and ~~in addition to,~~ the terms and conditions ~~described~~ of the Escrow Agreement, as security for the indemnification obligations of Dictaphone set forth in ~~Sections 1.02 (F), (G)~~ Article 9 and (Hz) ~~below. E. The Purchaser~~ U.S. Three Million Eight Hundred Fifty Thousand Dollars (US$3,850,000) shall ~~issue cash payment totaling three hundred fifty thousand dollars~~ be deposited in escrow (~~$350,000~~with any accrued interest earned thereon, the “Audit Escrowed Funds”) in ~~increments under terms~~ accordance with Section 2.7 and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions of the Escrow Agreement, as security for the obligations of Dictaphone set forth in ~~sub-paragraph 1.02 (F~~Section 6.7(c)~~, then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale~~ . All amounts payable under this Section 2.5 are stated exclusive of ~~such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars~~ any value added or similar sales tax which shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Sellerpayable in addition. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.”

Appears in 1 contract

Sources: Asset Purchase and Sale Agreement (Nice Systems LTD)

Purchase Price. ~~The Purchaser~~ (a) In consideration for the Securities and the other Acquired Assets and in reliance on the representations, warranties and covenants of Parent, the Sellers and the Purchased Entities contained herein and in the Related Documents, at or prior to the Closing (including any Subsequent Closings) and in the manner set forth below, Buyer shall pay to the ~~Seller~~ Sellers an amount equal to ~~three million two hundred sixty thousand dollars (~~$3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB 282,000,000 (the "~~mergee~~Purchase Price"; such amount subject to adjustment as provided below), ~~issued by Purchaser~~ of which seventy-five percent (75%) shall be ~~eight hundred sixteen thousand~~ paid in cash by wire transfer of immediately available funds to an account specified in writing by the Sellers, and twenty-five percent (~~816,000~~25%) ~~shares~~ shall be paid into an escrow account (the "~~mergee shares)~~Escrow Account") pursuant to an escrow agreement in the form of Exhibit E attached hereto among Buyer, ~~subject to adjustment based upon a pari pasu conversion into~~ the ~~mergee's shares. All Shares issued to Seller~~ Sellers and the Escrow Agent; provided, that if (i) Sellers shall ~~be duly and validly issued~~ have filed under the HSR Act by ~~Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ the ~~market price~~ close of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, business on the date of this Agreement and satisfied their additional conditions to be fulfilled prior to the ~~effectiveness~~ Closing (other than the Sale Order becoming a Final Order), and (ii) the Initial Closing Date shall not have occurred on or prior to midnight on Monday, November 21, 2005, then the Purchase Price shall be increased by $5,000,000. (b) No later than the close of business on Monday November 14, 2005, Buyer shall deposit with a mutually agreeable escrow agent (the ~~first registration~~ "Escrow Agent"), by certified check or wire transfer of ~~any~~ immediately available funds, the sum of $15 million (the ~~mergee shares~~"Deposit"). (c) Subject to Section 3.2, prior to or on the ~~date that an exemption from registration for such shares is available~~ Initial Closing Date, Buyer shall wire transfer to the ~~Shareholders pursuant to the RRA, at any time subsequent to the execution~~ Sellers 75% of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee an amount (the "~~mergee closing shares~~Adjusted Purchase Price") ~~that are free of any restrictions as to their transferability or marketability in~~ equal to: (i) the ~~open market~~Purchase Price, ~~to be paid to~~ minus (ii) the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing sharesSegregated Account Adjustment. ~~D. In~~ (d) Subject to Section 3.2, prior to or on the ~~event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the~~ Initial Closing Date, Buyer shall deposit into the Escrow Account an amount equal to ~~arrange for the shares described in 1.02~~ (Ci) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services 25% of the ~~principals and agents of~~ Adjusted Purchase Price, minus (ii) the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) belowDeposit. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Acquisition Agreement (Refco Inc.)

Purchase Price. (a) The ~~Purchaser shall pay to~~ purchase price of the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is One Million Eight Hundred Thousand Dollars ($~~3,260,000~~1,800,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~Purchase Price")~~, issued by Purchaser~~ . (b) The Purchase Price shall be ~~eight hundred sixteen thousand~~ paid as follows: (~~816,000~~i) ~~shares~~ Within three (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.3) ~~One Hundred Eighty (180)~~ business days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to after the execution of this ~~EPA~~Agreement by both Buyer and Seller, ~~and prior to~~ Buyer shall deposit in escrow with First American Title Company- Healdsburg office ("Title Company"), a deposit in the ~~180th day subsequent to~~ amount of Twenty-five Thousand Dollars ($25,000) (the ~~execution of this EPA, then four hundred thousand (400,000) additional shares of common stock~~ “Deposit”). All sums constituting the Deposit shall be ~~issued~~ held in an interest-bearing account and ~~delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or~~ interest accruing thereon shall be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, held for the ~~payment~~ account of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing DateBuyer. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event ~~that~~ the ~~Purchaser~~sale of the Property as contemplated hereunder is consummated, ~~for any reason,~~ the Deposit plus interest accrued thereon shall ~~fail, within seventy-two (72) days subsequent to~~ be credited against the ~~Closing Date, to arrange for~~ Purchase Price. In the ~~shares described in 1.02 (C) above, that are free~~ event the sale of the Property is not consummated because of the failure of any ~~restrictions as to their transferability~~ condition or ~~marketability in~~ any other reason except a default under this Agreement solely on the ~~open market~~part of Buyer, ~~to be paid to~~ the ~~Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser~~ Deposit plus interest accrued thereon shall immediately ~~file an S-8 registration statement registering such shares for~~ be returned to Buyer. If said sale is not consummated because of a default under this Agreement solely on the ~~services~~ part of Buyer, the ~~principals and agents of~~ Deposit but not the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 interest accrued thereon shall be paid to and retained by Seller as liquidated damages. The parties have agreed that Seller's actual damages, in the ~~Seller in~~ event of a ~~manner identical to~~default by Buyer, ~~and in addition to~~would be extremely difficult or impracticable to determine. Therefore, by placing their initials below, the ~~terms~~ parties acknowledge the Deposit has been agreed upon, after negotiation, as the parties' reasonable estimate of Seller's damages and ~~conditions described~~ as Seller's exclusive remedy against Buyer, at law or in ~~Sections 1.02 (F)~~equity, ~~(G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described~~ in the ~~Money~~ event of a default under this Agreement solely on the part of Buyer. Seller Buyer (ii) Buyer shall pay $1,775,000, the balance of the Purchase ~~Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000)~~Price, by ~~wire coincident with Purchaser's receipt of~~ depositing such payment into escrow in immediately available funds ~~as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of~~ at least one ~~or more pieces of equipment manufactured by the Purchaser. Purchaser shall~~ (1) ~~provide to the Seller on~~ business day before the Closing Date ~~a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller;~~ (~~2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so~~ as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaserdefined in Section 5 below). G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Acquisition and Preservation Agreement

Purchase Price. ~~The Purchaser~~ Buyer, Seller and Seller’s Principals acknowledge that the determination of the aggregate purchase price for all of the Purchased Assets must account for the fact that Section 2.4 of the Lease Agreement contains a “Terminations Option” in favor of Lessor pursuant to which Lessor may seek to terminate the Lease Agreement upon ninety (90) days’ notice, and that any such termination would substantially shorten the time period during which Buyer could operate the Cinema and would substantially diminish the aggregate value of the Purchased Assets. Accordingly, the aggregate purchase price that shall ~~pay to~~ actually be paid for the ~~Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000)~~ Purchased Assets shall be determined and paid in the following manner: A. (a) The ~~number of common shares~~ maximum aggregate purchase price for all of the ~~Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ Purchased Assets shall be Two Million One Hundred Sixty Seven Thousand Seven Hundred and ~~currently quoted on the OTCBB~~ Seventy Six dollars (~~the "mergee"~~$2,167,776), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be ~~fully paid~~ allocated as follows: $1.00 for the Lease Agreement; $2,092,776 for the remaining assets related to the Cinema; and ~~non~~$25,000 to each of Seller’s Principals as consideration for entering into the Non-~~assessable~~Competition Agreements. 1.(b) ~~One Hundred Eighty~~ The maximum aggregate purchase price has been determined based upon (~~180~~i) ~~days from this stock issuance, if the market price~~ a multiple of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) ~~days~~ times the actual TLCF of the ~~Closing Date~~Cinema as reflected in Seller’s financial statements for the calendar year ended December 31, 2011, and (ii) the parties’ anticipation that Buyer will have the right to operate the Cinema at the Leased Premises for a period of at least ten (10) years. Buyer will not be able to operate the Cinema for such time period, however, if Lessor exercises the Termination Option, in which event the aggregate purchase price for the Purchased Assets shall be reduced. (c) If the maximum aggregate purchase price is payable hereafter in accordance with this Section 2.6, payment shall consist (i) $75,000 in cash (the “Cash Consideration”) and (ii) 381,198 shares of Class A common stock, par value $0.01 (“Shares”), of Buyer Manager (the “Share Consideration”). (d) The ~~Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as~~ number of Shares comprising the Share Consideration has been determined by valuing each Share at the higher of the ~~date of~~ dollar amount equal to (i) the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy30-~~two (72) days subsequent~~ day VWAP prior to the Closing Date, less 10%, or (ii) $5.50 per share (the initial public offering price of Buyer Manager’s Shares, less 10%). (e) At the Closing, Buyer shall deliver to ~~arrange for~~ Seller 39,198 Shares. The balance of the ~~shares described~~ Share Consideration (342,000 Shares) shall be held in ~~1.02~~ escrow by ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ LLP pursuant to a customary form of escrow agreement approved by Seller at or prior to the Closing. (Cf) ~~above, that~~ Whether and the extent to which any additional Shares are ~~free of any restrictions as~~ delivered to ~~their transferability or marketability~~ Seller after the Closing shall be determined in the ~~open market~~following manner. Commencing with the twelve (12) month period ended December 31, 2014, and for each twelve (12) month period thereafter (each such twelve months being a “Period”), additional Shares shall be delivered to ~~be paid~~ Seller based upon the number of months during the immediately preceding Period Buyer was actually entitled to operate the ~~Seller by~~ Cinema at the ~~fifth~~ Leased Premises in accordance with Buyer’s normal Business operations. If operations of the Business were actually conducted for a full twelve (~~5th~~ 12) ~~day subsequent to the Closing Date~~months in any Period, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller Buyer shall be entitled to ~~a UCC-1 lien on the general and total revenue receipts~~ receive from escrow an additional 38,000 Shares (representing an additional 10% of the ~~Purchaser, as received in cleared Federal Funds, until such time as the payment~~ Share Consideration). The determination of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional ~~shares based on~~ Shares, if any, deliverable to Seller with respect to any Period shall be made by Buyer within (30) days of the conclusion of such Period and the information shall be promptly provided to the escrow agent If such operations were actually conducted for less than a full twelve (12) months in any Period as a result of the Lessor’s exercise of the Termination Option, the aggregate purchase price shall be reduced proportionately to reflect the actual number of ~~shares~~ months of Buyer’s operation of the Cinema. (g) If the Lessor shall terminate the Lease Agreement pursuant to Section 2.4 of the Lease Agreement, Buyer shall not be obligated to pay any Share Consideration for any Period beyond the month in which the ~~original purchase price instead of 1,020,000 shares~~Cinema shall have ceased normal Business operations, and ~~a pro-rata additional amount of cash based on~~ the ~~value of the original MPC~~escrow agreement shall terminate (h) While any Shares are held in escrow, ~~as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller~~ they shall be ~~applicable~~ entitled to ~~the mergee~~participate in any dividends and distributions with respect to Buyer Manager’s Common Stock, or but they shall not have any ~~other reporting parent or holding company exercising~~ voting ~~or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent~~rights. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Digital Cinema Destinations Corp.)

Purchase Price. ~~The~~ (a) At the Closing, the Purchaser shall pay to -------------- the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Seller, for the Properties, a purchase price (~~$3,260,000~~the "Purchase Price") in the ~~following manner: A. The number~~ -------------- amount of ~~common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ One Hundred Seventy Two Million Two Hundred Thousand Dollars (~~the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~$172,200,000), subject to ~~adjustment based upon~~ the following adjustments: (i) Except to the extent that the Purchaser has received a ~~pari pasu conversion into~~ credit therefor under the ~~mergee's shares. All Shares issued to Seller~~ Other Agreement, there shall be ~~duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days~~ deducted from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price ~~representing deposits to secure~~ the ~~Equipment~~sum of interest accrued at the Interest Rate on the Deposit from the date received to, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open marketbut not including, ~~to be paid to the Seller within five (5) days of~~ the Closing Date~~. The Purchaser may substitute five hundred ten thousand dollars~~ ; (~~$510,000~~ii) ~~in market value, as of~~ There shall be deducted from the ~~date of~~ Purchase Price the ~~closing,~~ Allocable Purchase Price of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions Property as to ~~their transferability~~ which this Agreement shall have been terminated pursuant to Sections 2.3, 2.4 or ~~marketability in the open market, to be paid to the Seller by the fifth~~ -------------------- 2.5; --- (~~5th~~ iii) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered There shall be ~~for~~ added to or deducted from the ~~payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing,~~ Purchase Price such ~~filing~~ amounts as may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser required pursuant to ~~its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser.~~Section 9; and --------- ~~G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02~~ (~~F), then the three hundred thousand dollars ($300,000~~iv) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars There shall be added to the ~~MPC~~Purchase Price an amount equal to Five Million Hundred Thousand Dollars ($5,500,000), ~~attached~~ which amount represents the purchase price of the FF&E Reserve. (b) The Purchase Price shall be payable as follows: (i) The Deposit shall be paid by the Purchaser as herein provided by wire transfer of immediately available funds to an account or accounts to be designated by the Seller; (ii) Except as ~~Exhibit B of this Agreement~~otherwise provided in Article 12, at the ~~time~~ Closing, the ---------- balance of the ~~first deliveries of contract equipment purchased by~~ Purchase Price less the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller Retained Funds shall be ~~entitled to a UCC-1 lien on the general and total revenue receipts~~ payable by wire transfer of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser immediately available funds on the Closing Date ~~has~~ to an ~~appraised fair market value in use~~ account or accounts to be designated by the Seller prior to the Closing; and (iii) The Retained Funds shall be payable by wire transfer of ~~less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing~~ immediately available funds on a ~~lesser amount~~ pro rata basis upon the expiration or sooner termination of ~~Equipment and pay a pro-rata amount~~any of the Leases of the Properties (other than any termination arising from the occurrence of any Default or Event of Default (as defined therein)) by the tenant under the Leases, ~~in cash and stock, on the Equipment so purchased,~~ to an account or ~~demand that~~ accounts to be designated by the Seller ~~include additional Equipment~~ prior to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H abovesuch date. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase, Sale and Exchange Agreement (Hospitality Properties Trust)

Purchase Price. ~~The Purchaser~~ (a) Subject to increase as provided in SECTION 2.5(C) and adjustment as provided in SECTION 2.7, the purchase price for the Sale Assets ("Purchase Price") shall ~~pay to the Seller an~~ be Two Hundred Twenty Million Dollars ($220,000,000), payable as follows: (i) An amount equal to ~~three million two hundred sixty thousand dollars ($3,260,000) in~~ the ~~following manner: A. The number of common shares~~ ▇▇▇▇▇▇▇ Money shall be paid by the Escrow Agent's disbursement of the ~~Purchaser, convertible into common shares~~ ▇▇▇▇▇▇▇ Money to Sellers by wire transfer of ~~a reporting corporation in a current status with its SEC filing requirements~~ immediately available funds pursuant to joint written instructions from Sellers and ~~currently quoted on~~ Buyer. (ii) The difference of (A) the ~~OTCBB~~ Purchase Price minus (B) the ~~"mergee"), issued by Purchaser~~ ▇▇▇▇▇▇▇ Money shall be ~~eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject~~ paid by Buyer to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted Sellers on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date by wire transfer of ~~the EPA. Other penalties or sanctions described in the RRA may also apply~~immediately available funds pursuant to written instructions from Sellers to Buyer. ~~B. The Purchaser~~ (b) Sellers shall ~~pay sixty thousand dollars ($60,000) in cash, by~~ furnish Buyer wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-instructions at least two (722) business days ~~subsequent~~ prior to the Closing Date~~, to arrange~~ . (c) The Purchase Price shall be increased: (i) By One Million Dollars ($1,000,000) upon expiration of the 60-day period following publication of notice by the FCC that applications for the ~~shares described in 1.02~~ FCC Order have been accepted for filing (Cthe "Initial Closing Period") ~~above~~if, ~~that are free~~ and only if, (A) Closing has not occurred prior to expiration of the Initial Closing Period because the FCC has failed to grant the FCC Order or the waiting period (including any ~~restrictions as to their transferability or marketability in~~ extensions) under the ~~open market, to be paid~~ HSR Act applicable to the ~~Seller~~ transactions contemplated by ~~the fifth~~ this Agreement has not expired or been terminated, and (~~5th~~ B) ~~day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering~~ such ~~shares for the services~~ failure of the ~~principals and agents of the Seller~~FCC, ~~as designated solely by the Seller, so as to allow~~ or such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer failure of such ~~shares~~ waiting period (including any extensions) to expire or be terminated, is the result of facts relating to Buyer or its Affiliates, including, but not ~~qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition~~ limited to, the ~~terms and conditions described in Sections 1.02~~ facts disclosed on SCHEDULE 4.7; and (~~F), (G~~ii) ~~and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars~~ By an additional One Million Dollars ($~~350,000~~1,000,000) ~~in increments under terms and conditions as described in~~ upon expiration of each consecutive 30-day period following the ~~Money Purchase Contract~~ Initial Closing Period (~~"MPC"), attached herein as Exhibit B~~ up to a maximum of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; four (4) ~~offer all~~ such 30-day periods) if, and only if, (A) Closing has not occurred prior to expiration of such 30-day period because the ~~same conditions and warranties~~ FCC has failed to grant the ~~contract purchaser for such piece(s~~FCC Order or the waiting period (including any extensions) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be HSR Act applicable to the ~~mergee~~transactions contemplated by this Agreement has not expired or terminated, ~~or any other reporting parent or holding company exercising voting or shareholder control over OAS~~ and (~~hereafter,~~ B) such failure of the ~~"Parent"), upon the execution and effectiveness of OAS's merger with the mergee~~FCC, or such ~~Parent. K. All obligations~~ failure of such waiting period (including any extensions) to expire or be terminated, is the ~~Purchaser shall accede~~ result of facts relating to Buyer or its Affiliates, including, but not limited to, the ~~mergee~~facts disclosed on SCHEDULE 4.7; provided, ~~or any such parent of OAS~~however, ~~as if~~ that the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, aggregate increase in the ~~name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based~~Purchase Price under this SECTION 2.5(C) shall in no event exceed Five Million Dollars ($5,000,000).

Appears in 1 contract

Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)

Purchase Price. The ~~Purchaser shall pay to~~ purchase price for the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB Company Assets (the "~~mergee~~Purchase Price") shall be ONE MILLION TWO HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($1,280,000) less (A) the aggregate amount of Seller's liabilities to be assumed by Purchaser under the Assigned Contracts, and (B) Seller's Tax Share. The Purchase Price shall be paid as follows: (a) $275,000 in cash at Closing (the "Cash Portion of the Purchase Price"). (b) Purchaser's execution and delivery to Seller at Closing of a non-interest bearing, unsecured promissory note in the original principal amount of $270,000 in the form attached hereto as Exhibit "A" (the "Note"), ~~issued by~~ which Note shall be payable as follows: (i) $150,000 shall be due and payable on or before February 28, 1999. Of such $150,000 payment, Purchaser shall ~~be eight hundred sixteen thousand~~ deliver $25,000 directly to Seller's lender, Innodata Corporation, a Delaware corporation (~~816,000) shares~~ "Seller's Lender"), as a payment on behalf of Seller, in satisfaction of that certain $25,000 installment note payment due on or before April 30, 1999, pursuant to the terms of that certain Promissory Note dated as of April 22, 1998 in the original principal amount of up to $100,000 (the "~~mergee shares~~Seller's Note"). Notwithstanding Purchaser's agreement to make such installment payment on behalf of Seller, Purchaser shall not assume nor become liable for any of Seller's obligations under the Seller's Note, it being Seller's and Purchaser's intention and agreement that Purchaser is merely agreeing to pay such amount directly to Seller's Lender on behalf of, and as an accommodation to, Seller. (ii) $120,000 shall be payable in twelve equal monthly installments of $10,000 each, payable on the first day of each month commencing on January 1, 1999, and continuing thereafter until December 1, 1999, when, if not sooner paid, all outstanding amounts under the Note shall be due and payable in full. (c) At Purchaser's request, AVRI hereby agrees to issue and deliver to Seller on December 31, 1999, 735 shares of convertible preferred stock of AVRI that has an aggregate stated value (which shall be the liquidation preference other than accrued but unpaid dividends, if any), ~~subject~~ herein referred to ~~adjustment based upon a pari pasu conversion into~~ as the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price "Stated Value," of ~~the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not~~ $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee 735,000 (the "~~mergee closing shares~~AVRI Stock"~~) that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days~~ ). See EXHIBIT "B" for a description of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing sharesAVRI Stock. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Applied Voice Recognition Inc /De/)

Purchase Price. ~~The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ (~~$3,260,000~~a) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to On the Closing Date, Sellers shall sell, transfer and deliver to ~~arrange~~ MMA Buyer and LP Buyer, and MMA Buyer and LP Buyer, shall purchase from Sellers the General Partnership Interest and the Limited Partnership Interests, respectively, in exchange for an amount in immediately available funds equal to Seventeen Million Five Hundred Thousand Dollars ($17,500,000) less the book value of the Minority Stock (the "Minority Stock Purchase Price") as of the day immediately preceding the Closing Date as reasonably determined by the parties based on the current book value of the Minority Stock of $________, adjusted to reflect any changes occurring in the ordinary course of business (the "Initial Payment") and an installment note of MMA Buyer (the "Note," together with the Initial Payment, the "Purchase Price for the ~~shares described in 1.02 (C~~Interests") ~~above, that are free of any restrictions~~ and unconditionally guaranteed as to ~~their transferability or marketability~~ payment and performance by FBR in the ~~open market,~~ principal amount of Nine Million Seven Hundred Thousand Dollars ($9,700,000) and secured by all of the Stock pursuant to an escrow agreement to be ~~paid to~~ entered into among MMA Buyer, MMA, the ~~Seller~~ Sellers and PNC Bank, National Association, as escrow agent (the "Escrow Agreement") and by a first indemnity deed of trust on land and improvements owned by RTS and known as 4916, 4918, 4920 and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ (the ~~fifth~~ "Deed of Trust"). Each of the Note, the Pledge and Security Agreement and the Deed of Trust shall be in the form attached as Exhibit 1.4. ----------- (~~5th~~ b) ~~day subsequent to~~ On the Closing Date, ~~then~~ the ~~Purchaser~~ General Partner and the Additional Stockholders, to the extent applicable, shall ~~immediately file an S-8 registration statement registering such shares~~ sell, transfer and deliver to MMA Buyer, and MMA Buyer shall purchase from the General Partner and the Additional Stockholders, to the extent applicable, the Minority Stock, in exchange for the ~~services of~~ Minority Stock Purchase Price in immediately available funds. (c) On the ~~principals and agents of~~ Closing Date, the ~~Seller, as designated solely by~~ Purchase Price for the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered Interests shall be ~~for~~ allocated among the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions Sellers as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market valueSchedule 1.1. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.------------

Appears in 1 contract

Sources: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)

Purchase Price. (a) The purchase price to be paid by Purchaser ~~shall pay~~ to Seller for the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB Group A Portfolio (the "~~mergee~~Purchase Price")) is Sixty Eight Million, ~~issued by Purchaser shall be eight hundred sixteen thousand~~ Three Hundred Twenty Five Thousand and No/100 (~~816,000~~$68,325,000.00) ~~shares (the "mergee shares)~~Dollars, subject to adjustment ~~based upon~~ as expressly set forth herein, payable as follows: (i) Six Hundred Eighty Three Thousand Two Hundred and Fifty ($683,250.00) Dollars (the "Downpayment") simultaneously with the execution and delivery of this Agreement, by a ~~pari pasu conversion into~~ bank wire transfer of immediately available funds to an account designated by ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ("Escrow Agent"). The Downpayment shall be held by Escrow Agent in accordance with the ~~mergee's shares~~terms of Section 19. ~~All Shares issued to~~ If the Closing (as hereinafter defined) shall occur, Seller shall be ~~duly~~ entitled to receive the Downpayment and ~~validly issued by Purchaser~~ all interest accrued thereon, if any, and such interest shall be ~~fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if~~ credited against the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price ~~representing deposits~~ payable pursuant to ~~secure~~ Section 2.1(a)(iii); (ii) An amount equal to the ~~Equipment, out~~ aggregate outstanding balance of the ~~proceeds~~ Mortgages (as defined below) assumed by Purchaser, as of ~~any loan or equity arranged~~ the Closing Date, as set forth in Section 18; and (iii) Sixty Seven Million Six Hundred Forty One Thousand Seven Hundred Fifty and No/100 ($67,641,750.00) Dollars, as decreased by the ~~Purchaser for any purpose~~amount set forth in Section 2.1(a)(ii), and subject to further adjustment as expressly set forth herein, at the Closing by bank wire transfer of immediately available funds to an account designated by the Sellers on or before the Closing Date (as hereinafter defined). C. (b) The ~~Purchaser shall cause two hundred four thousand (204,000) common shares of~~ Purchase Price set forth above is the ~~mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market,~~ aggregate amount to be paid to Seller for the ~~Seller within five (5) days~~ Group A Portfolio, and the portion of the ~~Closing Date.~~ Purchase Price allocable to each Property is as set forth below: (i) ▇▇▇▇▇▇ Park, NY $18,600,000.00 (ii) Glen Cove, NY $ 9,500,000.00 (iii) Yonkers, NY $ 9,700,000.00 (iv) Freeport, NY (▇▇▇▇▇ Street) $ 3,800,000.00 (v) Orlando, FL (Bay Hill) $13,250,000.00 (vi) Key Largo, FL (Trade Winds) $11,800,000.00 (vii) Lake Mary, FL $ 1,675,000.00 TOTAL: $68,325,000.00 ============== The ~~Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value~~Downpayment set forth above is the aggregate amount to be deposited for the Group A Portfolio, as and the portion of the ~~date of the closing~~Downpayment allocable to each Property is as set forth below: (i) ▇▇▇▇▇▇ Park, ~~of any registered shares~~NY $186,000.00 (ii) Glen Cove, ~~or shares exempt from registration~~NY $ 95,000.00 (iii) Yonkers, ~~of another corporation acceptable to the Seller in lieu of the mergee's closing shares.~~NY $ 97,000.00 (iv) Freeport, NY (▇▇▇▇▇ Street) $ 38,000.00 (v) Orlando, FL (Bay Hill) $132,500.00 (vi) Key Largo, FL (Trade Winds) $118,000.00 (vii) Lake Mary, FL $ 16,750.00 TOTAL: $683,250.00 =========== ~~D. In the event~~ (c) Sellers and Purchaser agree that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Sellers must convey and Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and must purchase all of the ~~shares so registered shall be for~~ Group A Portfolio in accordance with the ~~payment~~ terms of ~~services provided~~ this Agreement, subject to ~~Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer~~ all relevant provisions of ~~such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to~~this Agreement, and that the refusal of Seller to convey all of the Group A Portfolio or the failure of Purchaser to purchase all of the Group A Portfolio in ~~addition to,~~ accordance with the terms and conditions ~~described~~ of this Agreement shall be a default hereunder and permit the non-defaulting party to exercise its remedies provided for in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Philips International Realty Corp)

Purchase Price. (a) The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market purchase price of the ~~issuers common stock~~Property is Thirty Eight Million Seven Hundred Thousand Dollars ($38,700,000) (the “Purchase Price”). (b) The Purchase Price shall be paid as follows: (1) Within two (2) business days after the Effective Date, ~~as quoted on~~ Buyer shall deposit in escrow with Chicago Title Insurance Company ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Irvine, CA 92606, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Vice President, Senior Commercial Title Officer, phone: (▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇ (the ~~OTCBB,~~ “Title Company”) cash or other ~~regional or national stock exchange, other than~~ immediately available funds in the ~~Pink Sheets, is not~~ amount of One Million Dollars ($~~2.50 per share, a sufficient number of additional shares~~ 1,000,000) (the “Deposit”). (2) The Deposit shall be ~~delivered to the Seller so as to constitute~~ held in an interest bearing account and all interest thereon, less investment fees, if any, shall be deemed a ~~dollar value in the 2.) In the event that the common stock~~ part of the ~~issuer is quoted on~~ Deposit. If the ~~Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date~~ sale of the ~~effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares~~ Property as contemplated hereunder is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Dateconsummated, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 Deposit shall be paid to Seller at the ~~Seller~~ Closing (as defined in ~~a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G~~Section 1.2(b)(3) below) and ~~(H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in~~ credited against the ~~Money~~ Purchase ~~Contract ("MPC")~~Price. IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S DEFAULT HEREUNDER, ~~attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000)~~THEN BUYER MAY ELECT, ~~by wire coincident with Purchaser's receipt of such funds as described herein~~AS BUYER’S SOLE AND EXCLUSIVE REMEDY, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall EITHER TO: (1) ~~provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller;~~ TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT, IN WHICH EVENT NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS 6.1, 9.3 AND 9.9 BELOW, AND EXCEPT THAT BUYER SHALL BE ENTITLED TO RECOVERY FROM SELLER OF BUYER’S ACTUAL OUT-OF-POCKET COSTS INCURRED IN CONNECTION HEREWITH, NOT TO EXCEED FIFTY THOUSAND DOLLARS ($50,000), OR (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contractENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. ~~Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser~~BUYER SHALL NOT HAVE ANY OTHER RIGHTS OR REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLER PRIOR TO CLOSING, AND BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OF A DEFAULT HEREUNDER BY SELLER. IF THE SALE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT PRIOR TO CLOSING, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S OBLIGATIONS UNDER SECTIONS 6.1, 9.3 AND 9.9. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Equinix Inc)

Purchase Price. (a) In consideration for the conveyance of the Shares and in reliance on the representations and warranties, covenants and agreements of the Sellers contained herein and the documents contemplated hereby, the Purchaser shall pay to the Sellers the following consideration (the "Purchase Price"): (i) Seventeen and One-Half Million Dollars ($17.5 million) in cash plus or minus the Purchase Price adjustments set forth in SECTION 1.3 (such amount, subject to such adjustments, being hereinafter referred to as the "CASH AMOUNT"); and (ii) 550,000 shares of LTC Common Stock (the "LTC SHARES"), which shall be issued to each Seller in his Proportionate Share. (b) The Purchaser shall deliver the LTC Shares at Closing as follows: (i) the Purchaser shall deliver stock certificates representing one third of each Seller's Proportionate Share of the LTC Shares (the "ESCROW SHARES") to SunTrust Bank, Atlanta, as escrow agent (the "ESCROW AGENT"), to hold pursuant to the terms and conditions of the escrow agreement (the "ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.2(b) hereto, and (ii) the Purchaser shall deliver to each Seller stock certificates representing the remainder of his Proportionate Share of LTC Shares. The Cash Amount shall be paid to the Sellers by means of wire transfer of immediately available federal funds on the Closing Date. (c) If, between the date of this Agreement and the Closing Date, the outstanding shares of LTC Common Stock shall have been changed into a different number of shares or a different class by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within such period, or any similar event made, declared or effected within such period and with a record date, if applicable, within such period, the number of LTC Shares shall be correspondingly appropriately adjusted. (d) The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted Sellers on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of interest on the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion Cash Amount of the Purchase Price ~~representing deposits~~ including any payment under Section 1.3(a) at a rate of seven percent (7%) per annum, which shall accrue from March 1, 1998 to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of ~~the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares~~actual payment. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)

Purchase Price. (a) The ~~Purchaser~~ purchase price (the Purchase Price) of the Shares shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars~~ be Twenty Nine Million Seven Hundred Three Thousand Eight Hundred Seventy Six ($~~3,260,000~~29,703,876.00) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB US Dollars (the ~~"mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~Initial Amount), subject to adjustment ~~based upon a pari pasu conversion into~~ as provided herein: (i) The Initial Amount is equal to (x) $83,750,000.00 US Dollars (y) reduced by any liabilities of the ~~mergee's shares. All Shares issued~~ Group Entities (including any outstanding construction or landlord related work in relation to ~~Seller~~ the Property, the principal sum of the Mezzanine Loan and any interest due thereon as of the Closing (as defined below) and any loans from the Sellers to the Company as set forth on Schedule 1 hereto (the Shareholder Loans), but excluding any loan financing between Group Entities, contingent liabilities, such as lawsuits or other claims, or closing costs) (the Group Entities Liabilities), and (z) increased by all available cash at the level of the Group Entities (including any deposits or advances paid by the Sellers to the Condominium) (the Group Entities Cash Assets) as set forth on Schedule 4 hereto; (ii) On the Closing Date, the Parties shall determine the amount (the Final Amount) by which (x) $83,750,000.00 US Dollars exceeds (y) the amount of Group Entities Liabilities on the Closing Date minus the amount of the Group Entities Cash Assets on the Closing Date; and (iii) If the Final Amount is greater than the Initial Amount, the Purchase Price shall be ~~duly~~ increased by such difference, and ~~validly issued by Purchaser and~~ if the Final Amount is less than the Initial Amount, the Purchase Price shall be ~~fully paid and non-assessable~~decreased by such difference. Notwithstanding the foregoing, the adjusted Purchase Price may not be less than $29,403,876.00 US Dollars or more than $30,003,876.00 US Dollars. The Purchase Price shall be allocated among the Sellers as set forth on Schedule 1 attached hereto. 1.(b) ~~One Hundred Eighty (180) days from this stock issuance, if~~ On the ~~market price of the issuers common stock,~~ Closing Date and as ~~quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share,~~ a ~~sufficient number of additional shares shall be delivered~~ condition to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the ~~180th day subsequent~~ Closing the Purchaser shall: (i) cause the Company to repay to each Seller, with funds provided to Company by the Purchaser, the Shareholder Loans (in the sums set forth on Schedule 1 next to each Seller and in the current aggregate sum of $17,218,000 US Dollars as listed on Schedule 4, which sums could increase if Company borrows more from the Sellers, in which case such schedules will be replaced by updated schedules at the closing, provided that in no event shall either the Company nor any other Group Entity incur any additional indebtedness from the Sellers or any third party in excess of $2,000,000 US Dollars in the aggregate (as hereinafter adjusted, the Maximum Amount) (other than sums borrowed under the Senior Loan), and any such additional indebtedness incurred shall be used solely to pay for work, alterations, construction, and improvements (or similar uses) to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights Property pursuant to the ~~RRA~~Declaration and/or the Spring Lease, ~~or be eligible~~ and for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000no other purpose) in ~~cash,~~ full satisfaction of all amounts owed by ~~wire transfer, coincident with the payment of pre-closing~~ any Group Entity to any Seller; and ~~closing expenses, for the payment of that~~ (ii) (x) utilize a portion of the Purchase Price ~~representing deposits to secure~~ in the ~~Equipment, out~~ amount of the ~~proceeds of any loan or equity arranged~~ sum calculated by Sellers to pay the ~~Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand~~ applicable Transfer Taxes (~~204,000~~as defined below) ~~common shares of the mergee (the "mergee closing shares") that are free of any restrictions as~~ to ~~their transferability or marketability in the open market, to be~~ New York State and New York City and have those Transfer Taxes paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date ~~a contract providing for~~ by US Propco (with reasonable evidence of such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser be provided by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser Sellers on the Closing ~~Date has an appraised fair market value~~ Date) and which Transfer Taxes shall be deemed to have been paid by the Sellers; and (y) pay to each Seller their allocated share of the Purchase Price (after deducting the sum required to pay the Transfer Taxes as set forth above in ~~use~~ clause (ii) of ~~less than $5,400,000~~this Section 2(b)) as set forth next to each Seller on Schedule 1 attached hereto (in proportion to their allocation of the projected Purchase Price in Schedule 1). Notwithstanding the foregoing, ~~then~~ the ~~Purchaser, at its sole discretion, may choose to effect~~ Maximum Amount shall be decreased by the ~~closing on a lesser~~ aggregate amount of ~~Equipment~~ all contracts, alterations, modifications, terminations or Change Orders made pursuant to Sections 5(f), (g), (i) or (k). Senior Loan means, collectively, (x) the acquisition loan entered into between US Propco and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, Mediocredito Italiano S.p.A. for a total ~~price equal to the pro-rata number~~ principal amount of ~~additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares~~$7,800,000 US Dollars, and (y) the construction loan entered into between US Propco and Mediocredito Italiano S.p.A. for a ~~pro-rata additional~~ total principal amount of ~~cash based on the value of the original MPC~~$20,000,000 US Dollars. Spring Lease means, collectively, that certain lease between Spring Studios New York, LLC (Spring), as ~~well as the other payment provisions contained in sub-Paragraphs ▇~~tenant, ~~▇, ▇, ▇, ▇,▇,▇~~ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OASUS Propco, as ~~if the original transactions contemplated herein had occurred with the mergee~~landlord, ~~or such Parent~~ dated December 19, 2011, as ~~applicable~~amended by First Amendment to Lease, dated as of March 19, 2013, as ~~of the date of this Agreement. L. The Seller~~guaranteed by Guaranty dated December 19,2011 made by Spring America, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.Inc.

Appears in 1 contract

Sources: Sale and Purchase Agreement (American Realty Capital New York Recovery Reit Inc)

Purchase Price. The aggregate purchase price to be paid by the Purchaser for the Purchased Shares shall ~~pay~~ be seventeen million US dollars (US$17,000,000) (the “Purchase Price”). The Purchase Price shall be paid in two irrevocable installments as follows: (i) one million US dollars (US$1,000,000) shall be paid by the Purchaser to the ~~Seller an amount equal to three~~ Sellers at the Closing (“Initial Payment”); (ii) sixteen million ~~two hundred sixty thousand~~ US dollars (~~$3,260,000~~US$16,000,000) shall be paid by the Purchasers to the Escrow Agent on or prior to January 31, 2008 (the “Final Installment Payment Date” and “Final Installment”, respectively). For the avoidance of any doubt, notwithstanding anything to the contrary in this Agreement or any other transaction document, it is clarified and agreed that the ~~following manner: A. The number~~ Purchaser’s obligation to pay the Purchase Price (including the Final Installment) (such obligation without any set off rights) is final, unconditional and irrevocable obligation and shall not be subject to the fulfillment of ~~common shares~~ any further conditions whatsoever, nor shall it be subject to the occurrence of any event other than the passage of time up to the Final Installment Payment Date, nor shall it be affected by any events, circumstances or occurrences arising between the Closing and the Final Installment Payment Date (including without limitation any such event, circumstances or occurrence concerning the business of the Company or the Purchaser). Additionally, notwithstanding anything to the contrary in this Agreement or any other transaction document, it is hereby clarified and agreed that notwithstanding any breach or alleged breach of this Agreement, the Purchaser will remain obligated to transfer the Purchase Price (including the Final Installment) (such obligation without any set-off rights) to the Sellers (directly or through the Escrow Agent, as defined below) on the Final Installment Payment Date; provided, however, that the foregoing shall not limit the right of the Purchaser, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on~~ if any, following the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion transfer of the Purchase Price ~~representing deposits~~ (including the Final Installment) (such obligation without any set-off rights) to ~~secure~~ the ~~Equipment~~Sellers (directly or through the Escrow Agent, ~~out of~~ as defined below), to bring a claim against the ~~proceeds of any loan or equity arranged by~~ Seller under Section 7 below (Indemnification). It is agreed between the Purchaser ~~for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares")~~ and Sellers that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall ~~immediately file an S-8 registration statement registering such shares for the services of the principals~~ not be entitled to any remedy (including interim remedies) and/or indemnity and/or damages under or in connection with this Agreement (or any related transaction document) (under law or equity) unless (and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and subject to) all of the ~~shares so registered~~ Purchase Price was fully paid to Sellers (directly or through the Escrow Agent). The Purchaser’s entitlement to bring a claim or suit under this Agreement shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the effective only upon full payment of the ~~$300,000 payment~~Purchase Price to Sellers (directly or through the Escrow Agent). At the Closing, ~~plus a penalty of fifty thousand ($50,000) dollars, is paid~~ the Sellers shall transfer to the ~~Seller. I. In~~ Escrow Agent the ~~event that~~ Purchased Shares by executing stock powers duly transferring the ~~Equipment sold by the Seller~~ Purchased Shares to the ~~Purchaser on~~ name of the Escrow Agent. At the Closing ~~Date has an appraised fair market value in use of less than $5,400,000, then~~ the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller Sellers shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger deposit with the ~~mergee, or such Parent. K. All obligations of~~ Escrow Agent stock certificates representing the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, Purchased Shares registered in the name of the ~~mergee reporting corporation~~Escrow Agent, accompanied by two forms of stock powers with respect to the transfer of the Purchased Shares from the Escrow Agent: (i) one form transferring the Purchased Shares to the Sellers in the amounts set forth in such forms, and (ii) one form transferring the Purchased Shares to SPC (collectively, the “Escrowed Shares”); all in accordance with the Escrow Agreement attached hereto as ~~if that document were~~ Schedule 1.2. Such Escrowed Shares will be released to the ~~original document~~ Purchaser in accordance with the provisions of the Escrow Agreement upon ~~which~~ the ~~transactions described herein were based~~receipt by the Sellers of the full Purchase Price. Subject to Section 4.9 below, during the period between the Closing and the receipt by Sellers of the entire Purchase Price (the “Escrow Period”), the Escrow Agent shall follow the instructions of the Purchaser as to the voting of the Escrowed Shares (as more fully set forth in the Escrow Agreement).

Appears in 1 contract

Sources: Stock Purchase Agreement (Magic Software Enterprises LTD)

Purchase Price. The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB purchase price (the "~~mergee~~Purchase Price"~~), issued~~ ) for the Transferred Assets payable by Purchaser ~~shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued~~ to Seller shall be ~~duly~~ Nine Million Two Hundred and ~~validly issued by Purchaser~~ Fifty Thousand Dollars and ~~shall be fully paid and~~ no/100s ($9,250,000.00) payable in two payments as follows: (i) A non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered refundable ▇▇▇▇▇▇▇ payment equal to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion 5% of the Purchase Price ~~representing deposits~~ in the amount of Four Hundred and Sixty Two Thousand and Five Hundred Dollars and no/100s ($462,500.00) due and payable on July 7, 2014 either by wire transfer or otherwise immediately available funds. Such payment shall be non-refundable unless (i) the closing does not occur by the Closing Date due to ~~secure~~ the ~~Equipment, out~~ negligent or willful failure of Seller to perform its obligations hereunder and if Purchaser is not then in default hereunder; or (ii) if there is a material adverse change in the Transferred Assets prior to the Closing Date. In the event of the ~~proceeds~~ occurrence of ~~any loan~~ either (i) or ~~equity arranged~~ (ii) above the ▇▇▇▇▇▇▇ money shall be refunded by ~~the Purchaser for any purpose~~Seller to Purchaser. C. (ii) The balance of Eight Million Seven Hundred and Eighty Seven Thousand and Five Hundred Dollars and no/100s ($8,787,500.00) due and payable at Closing on August 29, 2014 either by wire transfer or otherwise immediately available funds. The Closing Date shall be effective September 1, 2014 ("Effective Date"). (iii) Purchaser has been conducting a title examination of the Properties prior to execution hereof pursuant to a letter of intent between the parties. Purchaser agrees to complete its due diligence title examination prior to July 18, 2014. Should Purchaser discover any title defect(s) which Purchaser believes in good faith is/are of a nature which title cannot be successfully defended against a claim made by a third party, based upon industry standards in the acquisition of oil and gas properties, then Purchaser shall ~~cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as~~ notify Seller in writing prior to ~~their transferability or marketability in the open market~~July 18, ~~to be paid to the Seller within~~ 2014. Within five (5) ~~days of the Closing Date. The~~ businessdays following written notification from Purchaser ~~may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing,~~ of any ~~registered shares~~such title defect, Seller at its option, shall either cure the objection at Seller's expense prior to closing or ~~shares exempt from registration, of another corporation acceptable~~ advise Purchaser in writing that Seller does not intend to cure the ~~Seller~~ objection. If Purchaser does not desire to accept the lease(s) covering the property or properties with such title defect the parties shall in ~~lieu of~~ good faith negotiate a reduction in the ~~mergee's closing shares. D.~~ purchase price. In the event ~~that~~ Purchaser accepts any properties with "title defects" such acceptance shall in no manner expand nor limit the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability special warranty contained in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services Assignment and ▇▇▇▇ of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) belowSale. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (NYTEX Energy Holdings, Inc.)

Purchase Price. The ~~Purchaser~~ purchase price shall ~~pay~~ be payable as follows: (a) At the Closing, Buyer shall deliver to ~~the~~ Seller ~~an amount equal to three million two hundred sixty thousand dollars ($3,260,000)~~ certificates in the ~~following manner: A. The number~~ name of ~~common~~ Seller for Three Hundred Twelve Thousand, Five Hundred (312,500) shares of ~~the Purchaser, convertible into common shares~~ IDT Stock ("First Tranche of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted~~ IDT Stock"); (b) Buyer shall deliver to Seller annually on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price anniversary of the ~~issuers common stock~~closing date herein, ~~as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share,~~ for a ~~sufficient number~~ period of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the five years following execution of this ~~EPA~~Agreement, ~~and prior to the 180th day subsequent to the execution of this EPA~~certificates for Sixty-Two Thousand, ~~then four hundred thousand~~ Five Hundred (~~400,000~~62,500) ~~additional~~ shares of ~~common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such~~ IDT Stock (together with an additional ~~Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date~~ number of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of ~~the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market~~IDT Stock, ~~to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value,~~ valued as of the date of delivery sufficient to avoid the ~~closing,~~ treatment of any ~~registered shares~~portion of such Sixty-Two Thousand, Five Hundred (62,500) shares as interest for federal income tax purposes under sections 483 or ~~shares exempt from registration, of another corporation acceptable to the Seller in lieu~~ 1271-1275 of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free Internal Revenue Code of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller1986, as ~~designated solely by~~ amended (the ~~Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules~~ "Code") or any successor provision) (each an "Annual Tranche of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPCIDT Stock"), ~~attached herein as Exhibit B~~ for a total of ~~this Agreement~~Three Hundred Twelve Thousand, Five Hundred (312,500) shares of IDT Stock. F. (c) The ~~Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt~~ shares of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment IDT Stock delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser Buyer pursuant to ~~its contract. Seller shall have no liability whatsoever for any~~ this Agreement will, upon delivery, be deemed to be "restricted securities" under the Securities Act of 1933, as amended (the ~~terms pursuant to the Purchaser's contract with the contract purchaser~~"Securities Act"). ~~G. In~~ (d) Immediately following the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B execution of this Agreement, at Buyer shall commence preparation of a registration statement on Form S-3 to register for resale the ~~time~~ Initial Trance of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, IDT Stock under the ~~terms~~ Securities Act (the "Initial Registration Statement"). Buyer shall use its best efforts (i) to cause the Initial Registration Statement to be filed by no later than October 1, 1997, (ii) to cause the Initial Registration Statement to become effective no later than November 1, 1997, and ~~conditions set forth in sub-paragraph 1.02~~ (~~G), then~~ iii) to keep the ~~three hundred thousand dollars ($300,000) payment due~~ Initial Registration Statement effective pursuant to ~~the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds,~~ Rule 415 at all times until such time as the ~~payment~~ Seller may sell some or all of the ~~$300,000 payment, plus~~ shares of IDT Stock held by him pursuant to Rule 144(k) of the Securities Act. Buyer shall provide to Seller's counsel for review a ~~penalty~~ draft of ~~fifty thousand~~ the Initial Registration Statement in advance of filing. (~~$50,000~~e) ~~dollars, is paid~~ Within 30 days prior to the ~~Seller. I. In~~ issuance of any Annual Tranche of IDT Stock, Buyer shall commence preparation of a registration statement on Form S-3 to register for resale such Annual Tranche of IDT Stock (each, an "Annual Registration Statement"). Buyer shall use its best efforts (i) to cause such Annual Registration Statement to be filed by no later than the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value issue date of the ~~original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All~~ Annual Tranche of ~~the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS~~ IDT Stock (~~hereafter,~~ the "~~Parent~~Issue Date"), ~~upon~~ (ii) to cause such Annual Registration Statement to become effective no later than 30 days following such Issue Date, and (iii) to keep such Annual Registration Statement effective pursuant to Rule 415 at all times until such time as the ~~execution and effectiveness~~ Seller may sell some or all of ~~OAS~~the shares of IDT Stock held by him pursuant to Rule 144 of the Securities Act. Buyer shall provide to Seller's ~~merger with the mergee, or~~ counsel for review a draft of any such ~~Parent~~Annual Registration Statement in advance of filing. ~~K. All~~ (f) Notwithstanding the foregoing, Buyer shall not be obligated to file or keep effective the Initial Registration Statement or any Annual Registration Statement if the Board of Directors of Buyer makes a good faith determination that the filing or keeping effective of a registration statement would require the public disclosure of confidential material information, the disclosure of which would adversely affect Buyer. Buyer shall not be required to keep effective either an Initial Registration Statement or an Annual Registration Statement pursuant to this Agreement until such confidential material information is disclosed to the public or ceases to be material; provided, further, that the foregoing delay or non-effectiveness shall in no event exceed 90 days in any 360 day period. (g) The obligations in this Section 3 to register IDT Stock on behalf of Seller shall apply to any stock dividends or stock splits effected in respect of the ~~Purchaser shall accede~~ IDT Stock issued to ~~the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement~~Seller. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Stock Purchase Agreement (Idt Corp)

Purchase Price. ~~The Purchaser shall pay~~ A. Subject to adjustment as hereinafter provided, the ~~Seller~~ purchase price for the Property is Fifty Three Million and No/100 Dollars ($53,000,000.00), legal currency of the United States of America (the "PURCHASE PRICE"), payable as follows: (i) an amount equal to ~~three million two hundred sixty thousand dollars~~ Two Million Six Hundred Fifty Thousand and No/100 Dollars ($~~3,260,000) in the following manner: A. The number of common shares~~ 2,650,000), legal currency of the ~~Purchaser, convertible into common shares~~ United States of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ America (the "~~mergee~~DOWNPAYMENT"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date hereof, payable by wire transfer of immediately available federal funds to the attorney escrow account or of Dreier LLP, as escrow agent ("ESCROW AGENT"), to be held by Escrow Ag▇▇▇ ▇▇rsuant to and in accordance with the provisions of that certain Escrow Agreement, dated as of the ~~effectiveness~~ date hereof (the "ESCROW AGREEMENT") among Seller, Purchaser and Escrow Agent; (ii) an amount equal to Two Million Six Hundred Fifty Thousand and No/100 Dollars ($2,650,000), legal currency of the ~~first registration~~ United States of ~~any~~ America (the "Additional Downpayment"), on or before the second Business day following the last day of the ~~mergee shares~~Due Diligence Period (hereinafter defined) payable as set forth in subparagraph (i) above; and (iii) the balance of the Purchase Price by wire transfer of immediately available federal funds, ~~or on~~ legal currency of the ~~date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution~~ United States of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicableAmerica, to the account or accounts designated by Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with on the Closing ~~Date of the EPA. Other penalties or sanctions described in the RRA may also apply~~Date. B. ~~The~~ Seller and Purchaser ~~shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with~~ agree that the ~~payment~~ value of ~~pre-closing~~ the Personal Property is DE MINIMIS and ~~closing expenses, for the payment of~~ that no portion of the Purchase Price ~~representing deposits~~ shall be allocated to ~~secure~~ the ~~Equipment, out of the proceeds of any loan or equity arranged~~ Personal Property to be conveyed by ~~the Purchaser for any purpose~~Seller to Purchaser. C. ~~The~~ In the event Purchaser ~~shall cause two hundred four thousand (204,000) common shares of~~ sells the ~~mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid~~ Property prior to the ~~Seller within~~ date which is three hundred sixty five (5365) days ~~of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of~~ after the date of ~~the closing~~Closing to an entity which is not affiliated with Purchaser or Purchaser's primary investors (and for purposes hereof, ~~of any registered shares, or shares exempt from registration, of another corporation acceptable~~ a sale shall be deemed to have occurred if and only if a deed to the ~~Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser~~Property whenever same shall actually be recorded, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date based upon a contract ~~providing for~~ of sale entered into within such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub365-~~paragraph 1.02 (F~~day period), then ~~the three hundred thousand dollars ($300,000) payment due~~ concurrently therewith, Purchaser shall pay to ~~the~~ Seller ~~shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and~~ a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price sum equal to the ~~pro-rata number~~ product of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS twenty percent (~~hereafter, the "Parent"~~20%), ~~upon~~ multiplied by the ~~execution and effectiveness of OAS's merger~~ positive difference between (i) the net sales price actually received by Purchaser in connection with the ~~mergee~~sale and (ii) the Purchase Price. The net sales price shall take into account, ~~or such Parent~~only bona fide brokerage commissions. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Sale Purchase Agreement (Hilfiger Tommy Corp)

Purchase Price. ~~The Purchaser shall~~ For and in consideration of the respective conveyances, assignments, representations, warranties and covenants described herein Buyer or Guarantor agrees to pay to Seller, and Seller agrees to accept from Buyer or Guarantor the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB purchase price (the "~~mergee~~Purchase Price"~~), issued by Purchaser shall be eight hundred sixteen thousand (816,000~~) ~~shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly~~ and ~~validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock~~other consideration, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in thefollows: 2.(a) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ONE HUNDRED SEVENTY MILLION DOLLARS ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market170,000,000), to be paid at the Closing, plus or minus the Net Working Capital Adjustment provided for in Section 3.03; and (i) Contingency Earn-Up Payments, as described herein and as further set forth and illustrated in Exhibit A. "Contingency Earn-Up Payments" shall mean annual payments by Buyer to ~~the~~ Seller ~~within five~~ of fifty percent (550%) ~~days~~ of the ~~Closing Date. The Purchaser may substitute five hundred ten thousand dollars~~ amount by which the net margin from Buyer's previous year's operation of the Refinery exceeds a base net margin of Sixty Million Dollars ($~~510,000) in market value~~60,000,000). Net margin as used herein shall mean gross product margin minus refinery operating costs. Buyer shall provide Seller with an annual calculation pursuant to Exhibit A no later than March 31st of each year. Payments hereunder, as if any, shall be made on March 31 of each year, with the first payment being due no later than March 31, 2001 plus interest at the Base Rate from January 1, and for a period of up to eight (8) years from January 1, 2000; provided, however, that Buyer shall have the right to make an estimated Contingency-Earn Up Payment before March 31st and interest thereon shall cease to accrue from the date of such payment is received by Seller. If an estimated Contingency Earn-Up Payment is made, Buyer shall calculate a true up on March 15th and the ~~closing, of any registered shares,~~ under or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the over payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the ~~Purchaser. Purchaser shall (1) provide to the Seller~~ appropriate Party no later than March 31st, plus interest on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreementtrue up amount, at the ~~time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the~~ Base Rate from January 1. Each annual payment ~~to the Seller cannot~~ shall be ~~made~~a separate calculation, ~~for any reason, under the terms and conditions set forth in sub-paragraph 1.02~~ no annual payment made hereunder shall exceed Seven Million Five Hundred Thousand Dollars (G$7,500,000), ~~then~~ and the ~~three hundred thousand dollars~~ aggregate of all payments hereunder shall not exceed Forty Million Dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"40,000,000), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.;

Appears in 1 contract

Sources: Asset Purchase Agreement (Frontier Oil Corp /New/)

Purchase Price. ~~The~~ On and subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties, covenants and agreements of the Seller and the Shareholders contained in this Agreement, the "Purchase Price" to be payable by the Purchaser to the Seller hereunder shall equal Thirty-Six Million Dollars ($36,000,000), with such amount to be paid in a combination of cash and securities in accordance with and pursuant to the following: (i) At the Closing, the Purchaser shall pay to the Seller Seventeen Million Dollars ($17,000,000) by wire transfer or delivery of other immediately available funds to the account of the Seller as designated by the Seller in writing and delivered to the Purchaser concurrent herewith. (ii) At the Closing, the Purchaser shall transfer, convey, and deliver to the Seller one or more certificates representing that number of Shares having an ~~amount~~ aggregate value equal to ~~three million two hundred sixty thousand dollars~~ Fourteen Million Five Hundred Thousand Dollars ($~~3,260,000~~14,500,000) in (the ~~following manner: A. The number~~ "Sale Shares"). This value shall be determined based upon the average of ~~common shares~~ the per Share closing price of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stockpublicly traded Shares, as ~~quoted on~~ reported in the ~~OTCBB, or other regional or national stock exchange, other than~~ Wall Street Journal for the ~~Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to~~ five (5) business days immediately preceding the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock Contract Date. The Sale Shares shall be issued under, pursuant, and ~~delivered by Purchaser or the issuer, as applicable,~~ subject to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date terms and conditions of the ~~EPA. Other penalties or sanctions described in the RRA may also apply~~Restricted Stock Agreement. B. (iii) The ~~Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion~~ balance of the Purchase Price ~~representing deposits to secure the Equipment~~of Four Million Five Hundred Thousand Dollars ($4,500,000), ~~out of the proceeds of any loan or equity arranged~~ shall be paid by the Purchaser ~~for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares~~ by wire transfer or delivery of other immediately available funds to the account of the ~~mergee (the "mergee closing shares") that are free of any restrictions~~ Seller as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to designated by the Seller in ~~lieu~~ writing and delivered to the Purchaser on or before the payment date, upon the earlier to occur of (A) the irrevocable listing for sale on the Purchaser's online cattle marketplace by the Seller and the Seller Affiliates of at least thirty-five percent (35%) of the ~~mergee's closing shares. D. In~~ Seller and the ~~event that the Purchaser~~Seller Affiliates' combined, total cattle inventory listed or otherwise available for sale (on a cumulative basis) during any ~~reason, shall fail, within seventy-two~~ rolling ninety (7290) ~~days subsequent to~~ day period commencing on or after the Closing Date, ~~to arrange for~~ or (B) the ~~shares described in 1.02~~ date that is one (C1) ~~above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to~~ year after the Closing Date. (iv) In addition, ~~then the~~ Purchaser shall ~~immediately file an S-8 registration statement registering such shares for~~ assume the ~~services~~ liabilities listed on the Disclosure Schedule attached hereto, according to the terms of the ~~principals~~ Assignment and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Assumption Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Emerge Interactive Inc)

Purchase Price. (a) The ~~Purchaser~~ purchase price of the Acquired Assets shall consist of the Initial Purchase Price plus a contingent purchase price as described herein, in each case subject to reduction in accordance with the escrow and indemnification provisions contained herein. On the Closing Date, the Initial Purchase Price shall be payable as follows: (i) Buyer shall pay to ~~the~~ Seller an aggregate amount equal to ~~three million two hundred sixty thousand dollars~~ Nine Million Two Hundred Thousand Dollars ($~~3,260,000~~9,200,000) in minus the ~~following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ total outstanding principal and ~~currently quoted~~ interest on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, Notes calculated as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date, in immediately available funds; and (ii) Buyer shall deposit in escrow the Escrow Amount to be held and dispersed in accordance with the terms of the Escrow Agreement. (b) In addition to the Initial Purchase Price the Buyer shall pay additional cash consideration to Seller (or its successors or assigns) as follows (the “Earn-Out”): (i) On or before February 15, 2004, the Buyer shall pay the Applicable Percentage of Net Payments received by Buyer and its Affiliates after the Closing and on or prior to December 31, 2003; and (ii) On or before February 15 of each year beginning in 2005 and ending on February 15, 2009, the Buyer shall pay the Applicable Percentage of Net Payments received by Buyer and its Affiliates during the immediately prior calendar year; and (iii) On or before February 15, 2010, Buyer shall pay the Applicable Percentage of Net Payments received by Buyer and its Affiliates during calendar year 2009 provided that such Net Payments were recognized by Buyer as revenues during calendar year 2008. The ~~Purchaser may substitute five hundred ten thousand dollars~~ “Earn-Out” shall also include (~~$510,000~~y) ~~in market value, as of the date of the closing,~~ four percent (4%) of any ~~registered shares, or shares exempt from registration, of another corporation acceptable~~ Consideration attributable to the ~~Seller in lieu~~ sale or assignment of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability all or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and substantially all of the ~~shares so registered shall be for the payment~~ 802.11 Patents and (z) one percent (1%) of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid any Consideration attributable to the ~~Seller~~ sale or assignment of all or substantially all of the Smart Antenna Patents, in ~~a manner identical to, and in addition to,~~ each case that (A) the ~~terms and conditions~~ Buyer has not elected to assign the Earn-Out obligations described in ~~Sections 1.02~~ paragraphs (~~F),~~ i) through (Giii) ~~and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000~~of this Section 2.02(b) in ~~increments under terms and conditions~~ connection with such sale as described in Section 8.01 hereof and (B) such sale is consummated on or prior to December 31, 2009. Notwithstanding anything to the ~~Money Purchase Contract ("MPC"), attached herein as Exhibit B of~~ contrary contained in this Agreement, Buyer shall not be obligated to include the 802.11 or Smart Antenna Patents in any license granted by them. ~~F. The Purchaser shall issue cash payment totaling three hundred thousand dollars~~ (~~$300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s~~c) ~~payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser~~ Buyer shall (1and shall cause its Affiliates to) ~~provide~~ keep books and records adequate to accurately determine the ~~Seller on the Closing Date a contract providing~~ payments due under this Agreement. The books and records must be retained for ~~such payment to the Seller and for its obligation to title such manufactured equipment to the Seller;~~ at least two (2) ~~title such piece(s)~~ years after the delivery of ~~manufactured equipment~~ the royalty report to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contractwhich they relate. Seller shall have the right, no ~~liability whatsoever for any~~ more than once per calendar year, at Seller’s sole cost and expense, to have an independent certified public accountant, who shall enter into an appropriate nondisclosure agreement with Buyer, inspect all relevant books and records of Buyer and its Affiliates on seven (7) business days prior notice and during regular business hours to verify the reports and payments required to be made hereunder. The auditor shall disclose no more information than is reasonably necessary to determine the royalties owed hereunder. Should an underpayment in excess of ten percent (10%) be identified, Buyer shall pay the entire cost of the ~~terms pursuant to~~ audit. In any event, Buyer shall promptly pay any underpayment together with interest at the ~~Purchaser's contract with the contract purchaser. G. In the event~~ compounded annual rate of five percent (5%). All confidential information of Buyer and/or its Affiliates that ~~the payment to the~~ is obtained by Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of through such ~~manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars~~ audit shall be ~~added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased~~ held in confidence by ~~the contract purchaser that did not include the piece(s) titled to the~~ Seller. ~~H. In~~ (d) InterDigital hereby guarantees to Seller the ~~event that the payment to the Seller cannot be made, for any reason, under the terms~~ full and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the prompt payment of the ~~$300,000 payment~~Earn-Out to be paid by Buyer under this Agreement and the full and complete performance of all of Buyer’s duties and obligations under this Agreement. InterDigital’s obligations under this Section 2.02(d) shall continue until the Earn Out has been fully paid, ~~plus~~ performed and satisfied all in accordance with this Agreement. InterDigital warrants and represents to Seller that InterDigital has a ~~penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value~~ direct financial interest in ~~use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment~~ Buyer and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of will benefit directly from this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (Interdigital Communications Corp)

Purchase Price. ~~The Purchaser shall~~ (a) For and in consideration of the conveyances and assignments described herein and in addition to the assumption of liabilities as set forth in Section 1.4, Buyer agrees to pay to Seller, and Seller agrees to accept from Buyer, for the Assets, at Closing (such consideration, together with the consideration referred to in Section 1.2(b), the “Purchase Price”) (i) $5,000,000, of which $75,000 already has been paid to Seller, in cash, as an e▇▇▇▇▇▇ money deposit (the “Deposit”), and the remainder of which shall be paid in cash by wire transfer of immediately available funds to an account specified by Seller ~~an amount equal to three million two hundred sixty thousand dollars~~ (~~$3,260,000~~the “Cash Portion”); and (ii) ~~in the following manner: A. The number~~ 49,915 shares of common stock, par value $.10, of Martek (the “Initial Shares,” and together with the Milestone Shares, the “New Shares”). The Initial Shares shall be issued to Seller at Closing and will be subject to the registration rights provisions of Section 4 hereof. (b) For and in consideration of the conveyances and assignments described herein and in addition to the assumption of liabilities as set forth in Section 1.4, 74,873 shares of ~~the Purchaser~~common stock, ~~convertible into common shares~~ par value $.10 of ~~a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ Martek, (the ~~"mergee"), issued by Purchaser~~ “Milestone Shares”) shall be ~~eight hundred sixteen thousand (816,000) shares (the "mergee shares)~~deemed to be issued to Seller at Closing, but shall be immediately deposited in an escrow account pursuant to Section 11.6, and, subject to ~~adjustment based upon a pari pasu conversion into~~ the ~~mergee's shares. All Shares issued to~~ terms of the Post-Closing Escrow Agreement, shall not be transferable by Seller while under such escrow arrangement but shall be ~~duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days~~ distributed from ~~this stock issuance~~escrow, if in part, upon the ~~market price~~ occurrence of each of the ~~issuers common stock~~events set forth in (i) through (iii) below (each, ~~as quoted~~ a “Milestone Event”), beginning on the ~~OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number~~ first anniversary of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date and ending no later than the fourth anniversary of the ~~EPA. Other penalties or sanctions described~~ Closing Date: (i) on the first anniversary of the Closing Date, if, during the immediately preceding thirty (30) day period, the new fermentation, harvesting and extraction equipment related to the production of DHA and installed after the Closing Date (the “DHA Equipment”) has produced at least eighty percent (80%) of its Theoretical Capacity, fifty percent (50%) of the Milestone Shares remaining in the ~~RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000)~~ escrow account and not the subject of any escrow claims will be released from escrow and delivered to Seller in ~~cash, by wire transfer, coincident~~ accordance with the ~~payment~~ terms and conditions of ~~pre~~the Post-~~closing~~ Closing Escrow Agreement; provided, however, that, if during the immediately preceding thirty (30) day period, events or circumstances have occurred that, in the reasonable view of Buyer, were outside of the direct control of the Management Employees and ~~closing expenses~~such events or circumstances were a direct cause of the failure to meet the required Theoretical Capacity, then, so long as, during the first consecutive thirty (30) day period ending after the first anniversary of the Closing Date during which no such events or circumstances have occurred, the DHA Equipment produced at least eighty percent (80%) of its Theoretical Capacity, fifty percent (50%) of the Milestone Shares remaining in the escrow account and not the subject of any escrow claims will be released from escrow and delivered to Seller in accordance with the terms and conditions of the Post-Closing Escrow Agreement; (ii) on the second anniversary of the Closing, for ~~the payment of that portion~~ each of the ~~Purchase Price representing deposits~~ Management Employees that remains employed by Buyer, or has been approved to ~~secure the Equipment~~leave employment by Buyer for reasons other than job performance, ~~out~~ one-sixth (1/6th) of the ~~proceeds~~ Milestone Shares remaining in the escrow account and not the subject of any ~~loan or equity arranged by~~ escrow claims shall be released from escrow and delivered to Seller in accordance with the ~~Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares~~ terms and conditions of the ~~mergee~~ Post-Closing Escrow Agreement; and (iii) on the ~~"mergee closing shares") that are free~~ fourth anniversary of the Closing Date, any ~~restrictions as to their transferability or marketability~~ Milestone Shares remaining in the ~~open market,~~ escrow account will be released from escrow and delivered to ~~be paid to~~ Seller in accordance with the ~~Seller within~~ terms and conditions of the Post-Closing Escrow Agreement. Within five (5) business days of the occurrence of a Milestone Event, Buyer and Seller shall execute and deliver to the escrow agent a joint written direction, substantially in the form of Exhibit A to the Post-Closing ~~Date.~~ Escrow Agreement, which shall direct the escrow agent to release the appropriate number of Milestone Shares to Seller. (c) The ~~Purchaser may substitute five hundred ten thousand dollars~~ Purchase Price shall be allocated among the Assets in accordance with Section 13. (~~$510,000~~d) ~~in market value,~~ Martek hereby acknowledges that Seller will distribute the New Shares to Astral and the Management Employees effective as of the ~~date of~~ Closing Date and that, at Closing, Martek shall cause to be issued certificates evidencing the ~~closing, of any registered shares, or shares exempt from registration, of another corporation acceptable~~ New Shares to Astral and the Management Employees in such denominations as directed by Seller prior to the ~~Seller in lieu of the mergee's closing shares~~Closing. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Sale and Purchase Agreement (Martek Biosciences Corp)

Purchase Price. The aggregate purchase price (the "PURCHASE PRICE") for the Shares and for the covenant of the Sellers contained in Section 4.11 is as follows: (a) (1) (b) The Purchase Price will be payable at the option of the Purchaser ~~shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000)~~ in immediately available United States funds or in the ~~following manner: A. The number~~ shares of ~~common shares~~ Common Stock of the Purchaser's parent corporation, ~~convertible into common shares of~~ PDT, Inc., a ~~reporting~~ Delaware corporation ~~in a current status with its SEC filing requirements and currently quoted on the OTCBB~~ (the "~~mergee~~PDT SHARES")) or any combination thereof, ~~issued by Purchaser shall~~ provided that the PDT Shares must be ~~eight hundred sixteen thousand (816,000) shares (~~received on a tax-free basis in the ~~"mergee shares)~~opinion of PDT's auditors, and subject to ~~adjustment based upon~~ Sellers cooperating and agreeing to all conditions necessary to create a ~~pari pasu conversion into the mergee's shares~~tax-free exchange for PDT Shares. ~~All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable~~*****. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser The Purchase price will be reduced by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any percentage ownership of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment Shares already owned by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, PDTC at the time of the ~~first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s~~Closing. *****Confidential Treatment Requested (c) ~~titled~~ The Purchase Price will be payable pro rata to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts Sellers with ***** of the ~~Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is~~ Purchase Price being paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and ~~stock, on~~ PDT Shares to the ~~Equipment so purchased, or demand that~~ Sellers and ***** of cash and PDT Shares will be transferred immediately to _______________________ (the ~~Seller include additional Equipment~~ "ESCROW AGENT") under an escrow agreement substantially in the form attached hereto as EXHIBIT A (the "ESCROW AGREEMENT") to ~~equal~~ be retained by the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, Escrow Agent for a ~~total price equal to the pro-rata number~~ period of ~~additional shares based on the number of shares~~ one year as provided in the ~~original purchase price instead of 1,020,000 shares,~~ Escrow Agreement. Any payments due under SECTION 2.29 hereof to HAI Financial will be reduced from the sums due the Sellers and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall will be ~~applicable~~ payable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, HAI Financial as if ~~the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement~~it were a Seller. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Option to Purchase (PDT Inc /De/)

Purchase Price. ~~The Purchaser shall~~ Buyer agrees to pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as ~~designated solely by~~ the ~~Seller~~purchase price for the Property, ~~so as to allow such shares to be immediately registered~~the sum of Seventy-Five Million Five Hundred Thousand and 00/100 Dollars ($75,500,000.00) (the “Purchase Price“). The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 Purchase Price shall be paid ~~to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02~~ as follows: (~~F), (G~~a) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; Within two (2) ~~title such piece(s) of manufactured equipment to~~ business days after the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B Effective Date of this Agreement, at Buyer shall deposit Five Hundred Thousand and 00/100 Dollars ($500,000.00) with the ~~time of~~ Escrow Agent (as hereinafter defined) in escrow as an ▇▇▇▇▇▇▇ money deposit (the ~~first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H.~~ “Initial Deposit“). In the event ~~that~~ Buyer fails to deliver the ~~payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02~~ Initial Deposit within such two (G)2) business day period, then ~~the three hundred thousand dollars ($300,000) payment due to the Seller, then the~~ such failure shall constitute an immediate event of default under this Agreement and Seller shall be entitled to ~~a UCC-1 lien on~~ terminate this Agreement upon written notice to Buyer; (b) By no later than the ~~general and total revenue receipts~~ expiration of the ~~Purchaser~~Due Diligence Period (as hereinafter defined), ~~as received~~ unless Buyer has terminated this Agreement in ~~cleared Federal Funds~~accordance with Section 8.2 below, ~~until such time as~~ Buyer shall deposit an additional sum of One Million Seven Hundred Thousand and 00/100 Dollars ($1,700,000.00) with the ~~payment~~ Escrow Agent (the “Additional Deposit“; together with the Initial Deposit and any interest earned thereon, collectively, the “▇▇▇▇▇▇▇ Money“). Upon expiration of the ~~$300,000 payment~~Due Diligence Period, ~~plus a penalty of fifty thousand ($50,000) dollars~~the ▇▇▇▇▇▇▇ Money shall, ~~is paid~~ except as otherwise specifically provided in this Agreement, be nonrefundable to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller Buyer but shall be applicable to the ~~mergee~~Purchase Price at Closing (as hereinafter defined); (c) Buyer shall deliver the Purchase Price, less the ▇▇▇▇▇▇▇ Money, and the credits herein authorized to Buyer, in immediately available funds in escrow with the Escrow Agent at or before 11:00 AM on the Closing Date (as hereinafter defined); and (d) Notwithstanding anything in this Agreement to the contrary, a portion of the ▇▇▇▇▇▇▇ Money in the amount of One Hundred and 00/100 Dollars ($100.00) will be non-refundable to Buyer and will be distributed to Seller upon any ~~other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter~~termination of this Agreement as independent consideration for Seller’s performance under this Agreement. If this Agreement is properly terminated by Buyer pursuant to a right of termination expressly granted to Buyer in this Agreement, if any, the ~~"Parent"), upon the execution~~ One Hundred and ~~effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations~~ 00/100 Dollars ($100.00) non-refundable portion of the ~~Purchaser shall accede~~ ▇▇▇▇▇▇▇ Money will be promptly distributed to Seller and, subject to the ~~mergee~~relevant provisions herein, ~~or any such parent of OAS, as if~~ the ~~original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as~~ balance of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name ▇▇▇▇▇▇▇ Money remaining after distribution of the ~~mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based~~independent consideration to Seller will be promptly returned to Buyer.

Appears in 1 contract

Sources: Purchase and Sale Agreement (CTO Realty Growth, Inc.)

Purchase Price. ~~The Purchaser shall pay~~ Subject to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the ~~time~~ Closing, as full consideration for the sale, transfer, conveyance and assignment of the ~~first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled~~ Purchased Assets to the ~~Seller. H. In~~ Purchaser, the ~~event that the payment~~ Purchaser shall (i) deliver to the Seller ~~cannot be made~~(or one or more of its designees, ~~for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000~~including one or more of its Subsidiaries) ~~payment due~~ one or more wire transfers of immediately available funds to the ~~Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser,~~ wire transfer address or addresses (as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold provided by the Seller to the Purchaser on or before the Business Day prior to the Closing ~~Date~~ Date), equal to Two Hundred Seventy-Five Million Dollars ($275,000,000) in the aggregate (the “Purchase Price”), subject to adjustment pursuant to Section 3.2, Section 3.5, Section 3.6 and Section 4.4, and (ii) assume the Assumed Liabilities. The Purchaser shall be entitled to deduct and withhold from the Purchase Price any Tax as required under all applicable Law, except to the extent that, with respect to a particular Tax, the Purchaser has ~~an appraised fair market value in use of less than $5,400,000, then~~ received a certificate or other documentation from the ~~Purchaser, at its sole discretion, may choose~~ Seller that is reasonably acceptable to ~~effect~~ the ~~closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand~~ Purchaser certifying that the Seller ~~include additional Equipment to equal~~ is exempt from withholding on such Tax. The Purchaser shall notify the ~~$5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000~~ Seller in ~~appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal~~ writing at least fifteen (15) days prior to the ~~pro-rata number~~ Closing of ~~additional shares based on~~ any such certificate or documentation. To the ~~number~~ extent that the Purchaser is required to deduct and withhold any Tax, such amount shall be treated as delivered to the Seller at Closing for all purposes of ~~shares in the original purchase price instead of 1,020,000 shares~~this Agreement, and ~~a pro-rata additional amount of cash based on~~ the ~~value~~ Purchaser shall promptly and timely deliver all amounts so withheld to the appropriate Tax Authority in accordance with applicable Law. To the extent any portion of the ~~original MPC, as well as~~ Purchase Price paid to the ~~other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All~~ Seller is allocable to Purchased Assets sold by any Subsidiary of the ~~terms and conditions~~Seller in accordance with the Initial Tax Allocation and/or the Allocation, ~~rights and entitlements~~ such portion of the Purchase Price so paid to the Seller shall be ~~applicable~~ deemed to have been paid to the ~~mergee~~Seller on behalf of such Subsidiary, ~~or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger~~ with the ~~mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS,~~ same effect as if ~~the original transactions contemplated herein~~ such payment had ~~occurred with the mergee, or~~ been made directly to such ~~Parent , as applicable, as of the date of this Agreement~~Subsidiary. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Asset Purchase Agreement (KCI Animal Health, LLC)

Purchase Price. 3.1 The Purchaser shall pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB purchase price (the "~~mergee~~PURCHASE PRICE") for the Premises is the sum of FIFTY-NINE MILLION ONE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED DOLLARS AND 00/100 ($59,143,200.00) payable by Purchaser to Seller as follows: (a) On the signing of this Contract, ONE MILLION TWO HUNDRED THOUSAND DOLLARS AND 00/100 ($1,200,000.00) (said sum together with interest earned thereon is hereinafter called the "DEPOSIT")~~, issued by Purchaser~~ . The Deposit shall be ~~eight hundred sixteen thousand~~ made by electronic wire transfer of immediately available federal funds to an account designated by Chicago Title Insurance Company, attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Escrow Officer, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Chicago, Illinois 60601 (~~816,000~~"INITIAL ESCROWEE") ~~shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee~~or by certified check of Purchaser or bank teller's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered check to the ~~Seller so as to constitute a dollar value in the 2.)~~ order of Initial Escrowee. In the event ~~that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or~~ any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described check in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the ~~$300,000 payment~~Deposit is cancelled or returned uncollected, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole ~~option and discretion~~option, may ~~require~~ cancel this Contract and/or pursue any legal remedies Seller may have against Purchaser on such check at the sole expense of Purchaser, such remedies being cumulative and not exclusive. Purchaser acknowledges and agrees that, unless it terminates this Contract in accordance with Section 12.1, on the first Business Day following the Outside Termination Date, the Deposit shall be transferred to rean account designated by Escrowee and Escrowee shall, from and after the Outside Termination Date, hold the Deposit in accordance with the terms of this Contract. (b) On the Closing Date, the sum of FIFTY-~~execute~~ SEVEN MILLION NINE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED DOLLARS AND 00/100 ($57,943,200.00) subject to adjustment pursuant to Sections 9.4, to be paid by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Heritage Title Company ("ESCROWEE") or as Escrowee may direct to Purchaser prior to the Closing and Purchaser shall cause Escrowee to distribute such funds to Seller in accordance with this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were basedContract.

Appears in 1 contract

Sources: Contract of Sale (Inland Western Retail Real Estate Trust Inc)

Purchase Price. 2.2.1 The purchase price (“Purchase Price”) for the sale and purchase of the Property shall be Forty Million Dollars ($40,000,000.00), subject to the debits and credits described in Article 10. 2.2.2 The Purchase Price shall be payable as follows: 2.2.2.1 Within three (3) business days following the Contract Date, Purchaser shall deposit into escrow with Escrow Agent the sum of Seven Hundred Twenty Thousand Dollars ($720,000.00), which deposit may be in the form of either immediately available funds or an irrevocable sight draft letter of credit in the form attached as Exhibit E and otherwise in form and content reasonably acceptable to Seller (“Letter of Credit”). 2.2.2.2 The Letter of Credit deposited pursuant to Section 2.2.2.1, any proceeds of a draw on such Letter of Credit pursuant to this Agreement, any immediately available funds deposited by Purchaser pursuant to Section 2.2.2.1 and any interest accrued on such proceeds or funds, shall be referred to collectively as the “Deposit.” The Deposit shall be held in accordance with Section 8.1. At Closing, the cash portion of the Deposit shall, at Purchaser’s option, either be paid to or at the direction of Seller and credited against the Purchase Price or returned to Purchaser, and any Letter of Credit not previously drawn by Escrow Agent shall be returned to Purchaser, together with a letter from Seller authorizing the termination of such Letter of Credit. 2.2.2.3 At Closing, Purchaser shall pay to or at the direction of Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire ~~transfer~~transfer of immediately available funds, ~~coincident with~~ the ~~payment of pre-closing and closing expenses, for the payment of that portion~~ balance of the Purchase Price ~~representing deposits to secure the Equipment, out~~ (net of the ~~proceeds~~ cash portion of ~~any loan or equity arranged by~~ the ~~Purchaser~~ Deposit), as adjusted for ~~any purpose~~the debits and credits described in Article 10. ~~C. The Purchaser~~ 2.2.2.4 Any Letter of Credit shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation issued by a financial institution acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and ~~for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s)~~ having a long-term unsecured debt rating from Standard & Poor’s Corporation of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (F), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B of this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled to the Seller. H. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than ~~$5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased,~~ “A” (or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H aboveequivalent from another nationally recognized rating agency). J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Agreement of Purchase and Sale (Bureau of National Affairs Inc)

Purchase Price. The ~~Purchaser shall pay to~~ purchase price of the ~~Seller an amount equal to three million two hundred sixty thousand dollars~~ Property is Eighteen Million Dollars ($~~3,260,000~~18,000,000) in the following manner: A. The number of common shares of the Purchaser, convertible into common shares of a reporting corporation in a current status with its SEC filing requirements and currently quoted on the OTCBB (the "~~mergee~~PURCHASE PRICE"~~), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares~~), subject to ~~adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued~~ adjustments as provided in Paragraphs 2(b) and 7 below. (a) The Purchase Price shall be payable to Seller ~~shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable.~~as follows: 1.(i) One Hundred Eighty (180) days from this stock issuance, if the market price of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered by Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within Within five (5) days after mutual execution of this Agreement, Buyer shall deposit, in escrow, with First American Title Guaranty Company, located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "TITLE COMPANY") the sum of Three Hundred Thousand Dollars ($300,000) as ▇▇▇▇▇▇▇ money (the "DEPOSIT"). The Title Company shall be instructed by Buyer and Seller to deposit the Deposit in an interest bearing account with interest payable to Buyer if the Deposit is returned to Buyer and with interest payable to Seller if the Deposit is payable to Seller. The Deposit, together with all interest accrued thereon, shall be credited toward the Purchase Price. If the sale is not closed due to a default under this Agreement by Seller or due to nonsatisfaction of a Buyer's Condition Precedent (defined below), then the Deposit (or a portion thereof as provided for herein) shall be returned to Buyer, together with all interest accrued thereon in accordance with the terms set forth in Paragraphs 2(c) and 4 below; and (ii) the remainder of the ~~Closing Date~~Purchase Price shall be paid to Seller in immediately available funds at the closing of the purchase and sale contemplated hereunder (the "CLOSING"). (b) Notwithstanding any provision of this Paragraph 2 to the contrary, in the event that the Zoning Approvals (as hereinafter defined) adopted and approved by the City and approved by Buyer and Seller pursuant to this Agreement provide for the development of an office/research and development complex containing in excess of two hundred forty thousand (240,000) gross buildable square feet, the Purchase Price shall be increased by an amount equal to Fifty Dollars ($50.00) per gross buildable square foot for every gross buildable square foot in excess of two hundred forty thousand (240,000) gross buildable square feet. (c) The Deposit shall be treated as follows: (i) Upon (a) the expiration of the Due Diligence Period (as defined below), (b) receipt by Seller on or prior to the expiration of the Due Diligence Period of Buyer's written notice that Buyer has elected to proceed with the acquisition of the Property pursuant to Paragraph 4 below, and (c) agreement by Buyer and Seller on the CC&Rs (as hereinafter defined) (as provided in Paragraph 4(e) below), then a portion of the Deposit in an amount equal to Seventy Five Thousand Dollars ($75,000) (the "PHASE I DEPOSIT") shall become non-refundable to Buyer except as otherwise expressly provided in this Agreement. The ~~Purchaser may substitute five hundred ten thousand dollars~~ parties acknowledge that Seller has obtained the City's (~~$510,000~~as hereinafter defined) ~~in market value, as~~ approval of the ~~date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable~~ Lot Line Adjustment (as hereinafter defined) pursuant to ~~the Seller in lieu of the mergee's closing shares. D.~~ Paragraph 4(d)(i) below. In the event that ~~the Purchaser, for any reason, shall fail, within seventy-two~~ there is a Challenge (~~72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions~~ as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the Seller in a manner identical to, and in addition to, the terms and conditions described in Sections 1.02 (F), (G) and (H) below. E. The Purchaser shall issue cash payment totaling three hundred fifty thousand dollars ($350,000) in increments under terms and conditions as described in the Money Purchase Contract ("MPC"), attached herein as Exhibit B of this Agreement. F. The Purchaser shall issue cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from the first sales contract(s) payable to the Purchaser from the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(shereinafter defined) to the ~~Purchaser for other equipment delivered~~ Lot Line Adjustment prior to the ~~contract purchaser~~ expiration of the Due Diligence Period, Buyer may elect to terminate this Agreement by delivering written notice to Seller, the ~~Purchaser coincidental~~ Deposit shall be returned to ~~the piece(s) titled~~ Buyer, Seller shall pay to ~~the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on~~ Buyer all of ~~its equipment sold to that contract purchaser pursuant to its contract. Seller~~ Buyer's Due Diligence Costs, and neither party shall have ~~no liability whatsoever for~~ any ~~of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions~~ further obligations except as set forth in ~~sub-paragraph 1.02 (F~~Paragraphs 10, 13(b) and 13(l), then the three hundred thousand dollars ($300,000) payment due to the Seller shall emanate from the next subsequent sale of such manufactured equipment by the Purchaser to its contract purchaser(s), at its next delivery of such equipment, and a penalty of twenty-five thousand ($25,000) dollars shall be added to the MPC, attached herein as Exhibit B . For purposes of this Agreement, at "DUE DILIGENCE COSTS" shall mean any and all title, escrow, survey, and inspections fees incurred by Buyer and any other expenses incurred by Buyer in connection with the ~~time~~ performance of its due diligence review of the ~~first deliveries of contract equipment purchased by~~ Property and the ~~contract purchaser that did not include the piece(s) titled to the Seller. H.~~ entitlements process, including, without limitation, environmental and engineering consultants' fees and expenses. In the event ~~that the payment~~ Buyer does not elect to terminate this Agreement and there is a Challenge to the ~~Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due~~ Lot Line Adjustment prior to the ~~Seller~~expiration of the Due Diligence Period, ~~then the Seller~~ Buyer shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid subject to the ~~Seller~~provisions of Paragraphs 4(d)(v) and 7(c) below. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 shares, and a pro-rata additional amount of cash based on the value of the original MPC, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all Exhibit documents, amendments or addendums, as applicable, and any and all ancillary documents pertinent to these transactions described herein, in the name of the mergee reporting corporation, as if that document were the original document upon which the transactions described herein were based.

Appears in 1 contract

Sources: Purchase Agreement (Knight Ridder Inc)

Purchase Price. The ~~Purchaser~~ total purchase price for the Assets (the -------------- "Purchase Price") shall ~~pay to the Seller an amount equal to three million two hundred sixty thousand dollars ($3,260,000) in the following manner: A. The number of common shares~~ consist of the ~~Purchaser~~Cash Consideration, ~~convertible into common shares of a reporting corporation in a current status with its SEC filing requirements~~ the Notes, the ADP Shares, and ~~currently quoted on~~ the OTCBB (the "mergee"), issued by Purchaser shall be eight hundred sixteen thousand (816,000) shares (the "mergee shares), subject to adjustment based upon a pari pasu conversion into the mergee's shares. All Shares issued to Seller shall be duly and validly issued by Purchaser and shall be fully paid and non-assessable. 1.) One Hundred Eighty (180) days from this stock issuance, if the market price assumption of the issuers common stock, as quoted on the OTCBB, or other regional or national stock exchange, other than the Pink Sheets, is not $2.50 per share, a sufficient number of additional shares shall be delivered to the Seller so as to constitute a dollar value in the 2.) In the event that the common stock of the issuer is quoted on the Pink Sheets, and is not quoted on the OTCBB, or any other regional or national stock exchange, on the date of the effectiveness of the first registration of any of the mergee shares, or on the date that an exemption from registration for such shares is available to the Shareholders pursuant to the RRA, at any time subsequent to the execution of this EPA, and prior to the 180th day subsequent to the execution of this EPA, then four hundred thousand (400,000) additional shares of common stock shall be issued and delivered Assumed Liabilities by ~~Purchaser or the issuer, as applicable, to the Seller immediately following such occurrence~~American. Such additional Shares issued will bear registration rights pursuant to the RRA, or be eligible for exemption from Registration, as if such Shares were issued coincident with the Closing Date of the EPA. Other penalties or sanctions described in the RRA may also apply. B. The ~~Purchaser shall pay sixty thousand dollars ($60,000) in cash, by wire transfer, coincident with the payment of pre-closing and closing expenses, for the payment of that portion of the~~ Purchase Price representing deposits to secure the Equipment, out of the proceeds of any loan or equity arranged by the Purchaser for any purpose. C. The Purchaser shall cause two hundred four thousand (204,000) common shares of the mergee (the "mergee closing shares") that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller within five (5) days of the Closing Date. The Purchaser may substitute five hundred ten thousand dollars ($510,000) in market value, as of the date of the closing, of any registered shares, or shares exempt from registration, of another corporation acceptable to the Seller in lieu of the mergee's closing shares. D. In the event that the Purchaser, for any reason, shall fail, within seventy-two (72) days subsequent to the Closing Date, to arrange for the shares described in 1.02 (C) above, that are free of any restrictions as to their transferability or marketability in the open market, to be paid to the Seller by the fifth (5th ) day subsequent to the Closing Date, then the Purchaser shall immediately file an S-8 registration statement registering such shares for the services of the principals and agents of the Seller, as designated solely by the Seller, so as to allow such shares to be immediately registered. The shares so registered will be in compliance with all applicable rules of the SEC regarding S-8 filings, and all of the shares so registered shall be for the payment of services provided to Purchaser. Should Purchaser qualify for an S-3 registration filing, such filing may be substituted for the S-8 filing. Should the issuer of such shares not qualify to file an S-8 registration for such shares, then an additional $325,000 shall be paid to the ~~Seller~~ Companies, at Closing, as follows: (a) American shall pay the Cash Consideration by certified or bank cashier's check or wire transfer as follows: (i) $4,632,210 to OCS; and (ii) $391,750 to APA; (b) ADP shall issue and deliver the Notes as follows: (i) one Note in the original principal amount of $830,520 to OCS; and (ii) a ~~manner identical to~~second Note in the original principal amount of $69,480 to APA; (c) ADP shall issue and deliver, or issue to American and ~~in addition to~~cause it to deliver, the ~~terms and conditions described in Sections 1.02~~ ADP Shares as follows: (~~F), (G~~i) 12,814 ADP Shares to OCS; and (Hii) ~~below.~~1,021 ADP Shares to APA; and; ~~E. The Purchaser~~ (d) American shall ~~issue cash payment totaling three hundred fifty thousand dollars~~ assume the Assumed Liabilities by executing and delivering (~~$350,000~~i) ~~in increments under terms and conditions as described~~ an assumption agreement in the ~~Money Purchase Contract~~ form attached to this Agreement as Exhibit C (the "~~MPC~~Assumption Agreement"), and (ii) an assignment and assumption agreement for the Leases in the form attached ~~herein~~ to this Agreement as Exhibit B D (the "Assignment of ~~this Agreement~~Leases"), together with separate assignments of the Leases for recording purposes in form reasonably satisfactory to ADP and consistent with the Assignment of Leases. F. (e) The ~~Purchaser shall~~ Companies hereby direct ADP and/or American to issue ~~cash payment totaling three hundred thousand dollars ($300,000), by wire coincident with Purchaser's receipt of such funds as described herein, emanating from~~ and deliver the ~~first sales contract(s) payable~~ Notes and the ADP Shares directly to the ~~Purchaser from~~ Shareholders, in the contemplated purchaser(s) under such contract(s) within the first deliveries of one or more pieces of equipment manufactured by the Purchaser. Purchaser shall (1) provide to the Seller on the Closing Date a contract providing for such payment to the Seller and for its obligation to title such manufactured equipment to the Seller; (2) title such piece(s) of manufactured equipment to the Seller during the manufacturing process; (3) include such piece(s) within the initial deliveries to such contract purchaser so as to effect payment to the Seller simultaneously with the payment(s) to the Purchaser for other equipment delivered to the contract purchaser by the Purchaser coincidental to the piece(s) titled to the Seller; (4) offer all the same conditions and warranties to the contract purchaser for such piece(s) so utilized to effect the payment to the Seller as it offers on all of its equipment sold to that contract purchaser pursuant to its contract. Seller shall have no liability whatsoever for any of the terms pursuant to the Purchaser's contract with the contract purchaser. G. In the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions proportions set forth in ~~sub-paragraph 1.02 (F)~~Exhibit A, ~~then the three hundred thousand dollars ($300,000) payment due~~ as an accommodation to the ~~Seller~~ Companies and the Shareholders in light of the fact that each Company will commence liquidation at or immediately after the Closing. The Purchase Price shall ~~emanate from~~ be allocated among the ~~next subsequent sale of such manufactured equipment~~ Assets as agreed upon by the ~~Purchaser~~ Companies and ADP at or prior to ~~its contract purchaser(s)~~the Closing in accordance with Section 1060 of the Internal Revenue Code of 1986, ~~at its next delivery of such equipment~~as amended, and ~~a penalty~~ the applicable regulations thereunder. The Companies and ADP shall use all reasonable efforts to agree upon such allocation as soon as practicable. The allocation of ~~twenty-five thousand~~ the Purchase Price determined under this (~~$25,000) dollars~~ S)1.4 shall be ~~added~~ binding on the Parties, shall be used for all purposes on their respective Federal, state, and local income tax returns, and shall be supported by them in any audits or other disputes or litigation involving any such returns. ADP and each of the Companies shall timely prepare and file all required tax reports and returns with respect to the ~~MPC~~allocation of Purchase Price under this (S)1.4, ~~attached herein~~ such as ~~Exhibit B~~ Internal Revenue Service Form 8594 or any equivalent statement, and shall furnish the other Parties with a copy of ~~this Agreement, at the time of the first deliveries of contract equipment purchased by the contract purchaser that did not include the piece(s) titled~~ any such form or statement no later than 10 days prior to the ~~Seller. H. In~~ required filing date. The Companies and the event that the payment to the Seller cannot be made, for any reason, under the terms and conditions set forth in sub-paragraph 1.02 (G), then the three hundred thousand dollars ($300,000) payment due to the Seller, then the Seller Shareholders shall be entitled to a UCC-1 lien on the general and total revenue receipts of the Purchaser, as received in cleared Federal Funds, until such time as the payment of the $300,000 payment, plus a penalty of fifty thousand ($50,000) dollars, is paid to the Seller. I. In the event that the Equipment sold by the Seller to the Purchaser on the Closing Date has an appraised fair market value in use of less than $5,400,000, then the Purchaser, at its sole discretion, may choose to effect the closing on a lesser amount of Equipment and pay a pro-rata amount, in cash and stock, on the Equipment so purchased, or demand that the Seller include additional Equipment to equal the $5,400,000 appraised fair market value. This Agreement may be amended to include a greater amount of Equipment, up to $20,000,000 in appraised fair market value, for terms and conditions identical to those represented herein, for a total price equal to the pro-rata number of additional shares based on the number of shares in the original purchase price instead of 1,020,000 sharespay, and ~~a pro-rata additional amount of cash based on the value of the original MPC~~shall hold ADP and American harmless from and against, as well as the other payment provisions contained in sub-Paragraphs ▇, ▇, ▇, ▇, ▇,▇,▇ and H above. J. All of the terms and conditions, rights and entitlements of the Seller shall be applicable to the mergee, or any other reporting parent or holding company exercising voting or shareholder control over OAS (hereafter, the "Parent"), upon the execution and effectiveness of OAS's merger with the mergee, or such Parent. K. All obligations of the Purchaser shall accede to the mergee, or any such parent of OAS, as if the original transactions contemplated herein had occurred with the mergee, or such Parent , as applicable, as of the date of this Agreement. L. The Seller, at its sole option and discretion, may require the Purchaser to re-execute this EPA, and any and all ~~Exhibit documents~~taxes, ~~amendments or addendums, as applicable~~assessments, and other charges that may be due and payable, or which relate in any ~~and all ancillary documents pertinent~~ way, to ~~these transactions described herein, in~~ the ~~name~~ transfer of the ~~mergee reporting corporation, as if that document were~~ Assets by the ~~original document upon which the transactions described herein were based~~Companies to American.

Appears in 1 contract

Sources: Asset Purchase Agreement (American Dental Partners Inc)

Common use of Purchase Price Clause in Contracts