FCN » Topics » CLOSING

This excerpt taken from the FCN 8-K filed May 24, 2005.

CLOSING

 

Section 7.1 Closing. Subject to the conditions set forth herein, the consummation of the transactions that are the subject of this Agreement (the “Closing”) shall occur at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 333 West Wacker Drive, Chicago, Illinois 60606, at 10:00 a.m. Chicago time on the second business day following the date on which all of the conditions to each party’s obligations hereunder have been satisfied or waived, or such other time and place as Buyer and the Seller Representative may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the “Closing Date.

 

Section 7.2 Closing Deliveries of Selling Parties. At the Closing, the Selling Parties will execute and deliver or cause to be executed and delivered, as applicable, to Buyer:

 

(a) Assignment and Bill of Sale. An assignment and bill of sale for the Assets, substantially in the form and to the effect of Exhibit 7.2(a) (the “Assignment and Bill of Sale”), duly executed by Seller.

 

(b) Assumption Agreement. An assumption agreement, substantially in the form and to the effect of Exhibit 7.2(b), transferring to Buyer the Assumed Liabilities (including the Contracts (subject to Section 1.4) (the “Assumption Agreement”).

 

(c) Lien Searches. Such Uniform Commercial Code lien searches and such other instruments dated no more than fifteen (15) days prior to the Closing Date showing that there were no Liens outstanding against the Assets as of the Closing Date or a date that is not more than fifteen (15) days prior to the Closing Date.

 

(d) Payoff Letters, Guarantee Releases and Lien Discharges. A payoff letter (“Payoff Letter”) from each holder of a Lien on any of the Assets, indicating that upon payment of a specified amount such holder shall release its security interest, authorizing the filing of Uniform Commercial Code Termination Statements and agreeing to execute such other documents or endorsements necessary to release of record the security interests of all such holders, and evidence of the release or discharge of such financing statements, judgments, or other Liens on or against the Assets, in form and substance satisfactory to Buyer. Releases under any Guarantees of any Selling Party.

 

(e) Opinion of Harwell Howard Hyne Gabbert & Manner, P.C. An Opinion of Harwell Howard Hyne Gabbert & Manner, P.C., special counsel to Seller, dated as of the Closing Date, substantially in the form and to the effect of Exhibit 7.2(f) attached hereto but with respect to Cambio Partners.

 

(f) Opinion of McDermott Will & Emery LLP. An opinion of McDermott Will & Emery LLP, special counsel to Seller, dated as of the Closing Date, substantially in the form and to the effect of Exhibit 7.2(f) attached hereto.

 

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(g) Employment Agreements. A duly executed Employment Agreement, substantially in the form of Exhibit 7.2(g) (each an “Employment Agreement”), for each individual identified on Schedule 7.2(g) (each, a “Senior Executive”).

 

(h) Restricted Stock Agreements and Related Questionnaires. A duly executed restricted stock agreement, substantially in the form of Exhibit 7.2(h) (each a “Restricted Stock Agreement”), for each LLC Owner, for each Selling Party and for each Escrow Joinder Individual who may receive Share Consideration in accordance with Section 5.13, in the case of each of the foregoing accompanied by a completed and signed questionnaire in the form attached as Exhibit A to such agreement.

 

(i) Executed Joinder Agreement. Duly executed joinder agreements, substantially in the form of Exhibit 7.2(i) (each a “Joinder Agreement”), from individuals listed in Schedule 3.2(a) that hold at least ninety-two percent (92%) of the then-outstanding membership interests of Cambio Partners and voted all of their membership interests in favor of approval of this Agreement and the transactions contemplated hereby.

 

(j) Escrow Agreement. The Escrow Agreement, duly executed by the Seller Representative.

 

(k) Consents. All consents and approvals from Governmental Authorities (whether federal, state or local) which are necessary to consummate the transactions contemplated by this Agreement (if any) shall have been obtained, and a copy of each such consent or approval shall have been provided to Buyer at or prior to the Closing.

 

(l) Purchase Price Schedule. The Purchase Price Schedule.

 

(m) CHS Sub Agreement. The CHS Sub Agreement.

 

(n) Escrow Joinder. Duly executed escrow joinder agreements, substantially in the form of Exhibit 7.2(n) (each an “Escrow Joinder Agreement”), from the individuals listed in Schedule 7.2(n).

 

(o) Other Documents. Such other documents and instruments as Buyer or its counsel reasonably shall deem necessary to consummate the transactions contemplated hereby.

 

All documents delivered to Buyer shall be in form and substance reasonably satisfactory to Buyer and Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for Buyer.

 

Section 7.3 Closing Deliveries of Buyer. At the Closing, Buyer will execute and deliver or cause to be executed and delivered to the Selling Parties or the Seller Representative, as applicable, simultaneously with delivery of the items referred to in Section 7.2 above:

 

(a) Payments at Closing. Bank wire transfers as provided in Section 2.2.

 

(b) Assignment and Assumption Agreement. The Assumption Agreement.

 

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(c) Opinion of Counsel. An opinion of outside counsel to Buyer, FTI and FTI LLC, dated as of the Closing Date, substantially in the form and to the effect of Exhibit 7.3(c) attached hereto.

 

(d) Employment Agreements. A duly executed Employment Agreement for each Senior Executive.

 

(e) Escrow Agreement. The Escrow Agreement.

 

(f) Other Documents. Such other documents and instruments as the Seller Representative or Seller’s counsel reasonably shall deem necessary to consummate the transactions contemplated hereby.

 

All documents delivered to the Selling Parties or the Seller Representative shall be in form and substance reasonably satisfactory to McDermott Will & Emery LLP.

 

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