QDHC » Topics » CONDITIONS TO CLOSING

This excerpt taken from the QDHC 8-K filed Jul 26, 2007.

CONDITIONS TO CLOSING

9.01 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Contemplated Transactions at the Closing are subject to the satisfaction of each of the following conditions, unless expressly waived by Buyer in writing:

(a) (i) All of the covenants and obligations that Seller or Seller Parent is required to perform or to comply with pursuant to this Agreement at or prior to the Closing, will have been duly performed and complied with in all material respects;

(ii) Seller’s and Seller Parent’s representations and warranties in this Agreement will have been true and correct in all material respects (except in the case of such representations and warranties which are qualified by materiality or as having a Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of the date hereof and will be true and correct in all material respects as of the Closing Date (except as to any representation or warranty that specifically relates to an earlier date, which representation or warranty shall be true and correct as of such earlier date); and

(iii) Buyer will have received an officer’s certificate in form and substance reasonably satisfactory to Buyer and its counsel signed by Seller and Seller Parent to the foregoing effect.

 

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(b) Buyer will have received the Financial Reports, Backlog Schedules and Updated Customer Financial Data in form and substance (i.e., pursuant to Section 4.04) reasonably satisfactory to Buyer, and, pursuant to Section 6.09, Buyer will have had four (4) weeks to review such materials.

(c) Buyer will have received duly executed counterparts of the Transition Services Agreement and the Reseller Agreement.

(d) Buyer will have received the approval of the Board of Directors of Buyer Parent with respect to this Agreement and the Contemplated Transactions.

(e) All Required Legal Approvals and Required Contractual Consents will have been obtained in form and substance reasonably satisfactory to Buyer and its counsel.

(f) No Order issued by any Governmental Authority of competent jurisdiction or any other legal restraint or prohibition preventing any transfer contemplated hereby or the consummation of the Closing, or imposing Damages in respect thereto, will be in effect, and there will be no pending or threatened Proceeding by any Governmental Authority or by any other Person challenging or in any manner seeking to restrict or prohibit the sale of the Business Assets or the consummation of any other transactions contemplated hereby.

(g) Buyer will have received duly executed counterparts of the Lease assignments.

(h) Buyer will have received fully executed Pay-Off Letters.

(i) Buyer will have received releases of all Liens on the Business Assets, other than Permitted Liens.

(j) Buyer will have received a certificate as to the good standing of Seller, executed by the appropriate officials of the State of Pennsylvania.

(k) Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of or cause Buyer to suffer any adverse consequence under any Applicable Law that has been published, introduced or otherwise proposed by or before any Governmental Authority.

(l) Buyer will have received all other documents, instruments and certificates contemplated by Section 3.02(e) or Section 7.03 hereof or otherwise reasonably requested by Buyer.

(m) Buyer will have received the FIRPTA Certificate required by Section 6.21.

(n) If Seller is required to be registered as an employer under the Workplace Safety and Insurance Act (Ontario), Buyer shall have received a Purchase Certificate issued under section 146 of the Workplace Safety and Insurance Act (Ontario).

 

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9.02 Conditions to Obligations of Seller. The obligations of Seller to consummate the Contemplated Transactions are subject to the satisfaction of each of the following conditions unless expressly waived in writing by Seller:

(a) (i) All of the covenants and obligations that Buyer or Buyer Parent is required to perform or to comply with pursuant to this Agreement at or prior to the Closing, will have been duly performed and complied with in all material respects;

(ii) Buyer’s and Buyer Parent’s representations and warranties in this Agreement will have been true and correct in all material respects as of the date hereof and will be true and correct in all material respects as of the Closing Date; and

(iii) Seller will have received an officer’s certificate signed by Buyer and Buyer Parent to the foregoing effect.

(b) No Order issued by any court of competent jurisdiction or any competent Governmental Authority or any other legal restraint or prohibition preventing any transfer contemplated hereby or the consummation of the Closing, or imposing Damages in respect thereto, will be in effect, and there will be no pending or threatened actions or Proceedings by any Governmental Authority (or determinations by any Governmental Authority) or by any other Person challenging or in any manner seeking to restrict or prohibit the sale of the Business Assets or the consummation of any other transactions contemplated hereby.

(c) Seller will have received duly executed counterparts of the Transition Services Agreement and the Reseller Agreement.

(d) Seller will have received duly executed counterparts of the Lease assignments.

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