PLNR » Topics » ARTICLE VI - CONDITIONS TO CLOSING

This excerpt taken from the PLNR 8-K filed Aug 12, 2008.

ARTICLE VI – CONDITIONS TO CLOSING

 

  6.1 Closing Deliverables to the Purchaser.

At the Closing, the Seller shall cause to be delivered to the Purchaser each of the following:

(a) Seller Closing Certificate. The Purchaser shall have received a certificate dated the Closing Date and executed by a senior officer of the Seller addressing the accuracy of the representations and warranties and compliance with covenants, such certificate in form and substance reasonably satisfactory to the Purchaser.

(b) Release of Liens. Evidence that all Liens set forth in Section 4.6 or Section 4.9 of the Seller Disclosure Schedule and any Liens with respect to Intellectual Property have been released.

(c) Termination of Participating Employer Status. Effective no later than the day immediately preceding the Closing Date, the Seller and its ERISA Affiliates, as applicable, shall each terminate the participation of the Company and the Company shall withdraw from (i) any and all group severance, separation or salary continuation plans, programs or arrangements and (ii) any and all plans sponsored by the Company or any ERISA Affiliate and intended to include a Code Section 401(k) arrangement pursuant to resolutions of the board of directors of the Seller (the “Participation Termination”).

(d) Resignation of Officers and Directors. The Purchaser shall have received a duly executed resignation and release letter in a form reasonably satisfactory to the Purchaser from each of the officers and directors of the Company effective as of the Closing.

(e) Other Closing Deliveries. The Seller shall have delivered to the Purchaser the following:

(i) Secretary’s Certificate. A certificate, dated as of the Closing Date, signed by the secretary or an assistant secretary of the Seller certifying as to (i) the incumbency of officers executing this Agreement and the Transaction Documents and (ii) the resolutions of the board of directors of the Seller authorizing the execution, delivery and performance by the Seller of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

(ii) Certification of Non-Foreign Status. An affidavit from the Seller dated as of the Closing Date, in the form required by Treasury Regulations Section 1.1445-2(b)(2) and signed under penalties of perjury, stating that the Seller is not a foreign person for purposes of Sections 897 and 1445 of the Code.

(iii) Material Consents. The Seller shall have obtained and delivered to the Purchaser the consent to assignment of the Contracts listed on Schedule 6.1(e).

(iv) Transition Services Agreement. The Seller shall have executed and delivered to the Purchaser the Transition Services Agreement.

 

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(v) Certificates of Good Standing. The Purchaser shall have received a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company. The Purchaser shall have received a Certificate of Status of Foreign Corporation (or equivalent) of the Company issued by the Secretary of State of the State of Massachusetts dated within two Business Days prior to the Closing.

 

  6.2 Closing Deliverables of the Purchaser.

On or at the Closing, the Purchaser shall cause to be delivered each of the following:

(a) Transition Services Agreement. The Purchaser shall have executed and delivered to the Seller the Transition Services Agreement.

(b) Note. The Purchaser and the Company shall have executed and delivered to the Seller the Note.

(c) Purchaser Closing Certificate. The Seller shall have received certificates dated the Closing Date and executed by a senior officer of the Purchaser and NDS addressing the accuracy of the representations and warranties and compliance with covenants, such certificate in form and substance satisfactory to the Seller.

(d) Release of Liens. Evidence of all Liens set forth in Section 4.6 or Section 4.9 of the Seller Disclosure Schedule and any Liens with respect to Intellectual Property shall have been released.

(e) Secretary Certificates. The Purchaser shall have delivered Certificates, dated as of the Closing Date, signed by the secretary or an assistant secretary certifying as to (i) the incumbency of officers executing this Agreement and the Transaction Documents, and (ii) the resolutions of the Purchaser’s governing bodies authorizing the execution, delivery and performance by the Purchaser of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

(f) Material Consents. The Seller shall have received the Material Consents listed on Schedule 6.1(e).

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