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EQUITY PURCHASE AGREEMENT

Stock Purchase Agreement

EQUITY PURCHASE AGREEMENT | Document Parties: AGREX, INC | FCSTONE GROUP, INC | FDGI, LLC You are currently viewing:
This Stock Purchase Agreement involves

AGREX, INC | FCSTONE GROUP, INC | FDGI, LLC

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Title: EQUITY PURCHASE AGREEMENT
Governing Law: Delaware     Date: 6/5/2007
Industry: Business Services     Law Firm: Calfee Halter     Sector: Services

EQUITY PURCHASE AGREEMENT, Parties: agrex  inc , fcstone group  inc , fdgi  llc
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Exhibit 10.1

EQUITY PURCHASE AGREEMENT

THIS EQUITY PURCHASE AGREEMENT (“ Agreement ”), dated as of the 1 st day of June, 2007, is entered into between AGREX, INC., a Kansas corporation (“ Buyer ”), and FCSTONE GROUP, INC., a Delaware corporation (“ Seller ”). Buyer and Seller are sometimes referred to herein collectively as the “ Parties ” and individually as a “ Party .”

Recitals

A. Seller owns Seven Hundred Thousand (700,000) units of membership (“ Units ”) of FDGI, L.L.C., a Delaware limited liability company (the “ Company ”).

B. Buyer owns Three Hundred Thousand (300,000) Units of the Company.

C. Buyer shall purchase from Seller, and Seller shall sell to Buyer, Four Hundred Fifty Thousand (450,000) Units of the Company (the “ Acquired Equity ”) upon and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of and in reliance upon the mutual representations, warranties and covenants set forth in this Agreement, the Parties hereby agree as follows:

SECTION 1

DEFINITIONS

1.1 Definition Reference . Certain capitalized terms used in this Agreement shall have the meanings set forth in Section 12.1.

1.2 Accounting Terms . Accounting terms used herein and not otherwise defined herein shall have the meanings attributed to them under GAAP.

SECTION 2

PURCHASE AND SALE OF UNITS

2.1 Purchase of Acquired Equity . Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell and transfer the Acquired Equity to Buyer and Buyer will purchase the Acquired Equity from Seller.

2.2 Purchase Price . The aggregate purchase price for the Acquired Equity will be an amount (the “ Purchase Price ”) equal to Six Million Seven Hundred Fifty Thousand Dollars ($6,750,000).

2.3 Payment . At the Closing, subject to the terms and conditions of this Agreement, Buyer will pay and deliver to Seller an amount in cash (the “ Closing Payment ”) equal to the Purchase Price. The Closing Payment will be paid by means of a wire transfer of immediately available funds to an account or accounts designated by Seller.

 


SECTION 3

THE CLOSING

3.1 The Closing . The consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of the Seller in Kansas City, Missouri, commencing at 9:00 a.m. local time on June 1, 2007, or such other date as the Parties may mutually determine (the “ Closing Date ”). Notwithstanding the foregoing, the Parties agree and acknowledge that the effective time of the consummation of the transactions contemplated hereby shall be 12:01 a.m. on the Closing Date.

3.2 Actions at or Prior to the Closing . At or prior to the Closing, (a) Buyer will deliver the various certificates, instruments, and documents referred to in Section 8.2 below; (b) Seller will deliver the various certificates, instruments, and documents referred to in Section 8.1 below; (c) Buyer will deliver to Seller the Closing Payment, as provided in Section 2.3 above; and (d) Seller shall deliver any certificates evidencing the Acquired Equity, either endorsed in blank or with transfer powers endorsed and attached thereto.

3.3 Interdependence . The sale and other transfers and deliveries described herein shall be mutually interdependent and regarded as occurring simultaneously as of the Closing; and, unless a particular transfer or delivery is waived by both the transferor and transferee, no such transfer or delivery shall become effective unless and until all the other transfers and deliveries provided for herein have also been consummated.

SECTION 4

REPRESENTATIONS AND WARRANTIES CONCERNING BUYER

Buyer represents and warrants to Seller as follows:

4.1 Organization, Authority and Capacity . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas. Buyer has full power and authority to execute, deliver, and perform this Agreement, and all the other agreements, instruments and documents to be executed and delivered by it in connection herewith, in accordance with their respective terms, and such execution, delivery and performance by Buyer has been, or as of the Closing Date will be, approved by all requisite company action. This Agreement, and all the other agreements, instruments and documents to be executed and delivered herewith, have been duly executed and delivered by Buyer, and each constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms.

4.2 No Consents or Conflicts . Except as set forth on Schedule 4.2 , no consent of, or filing with, any Governmental Authority or third party is required in connection with the execution, delivery or performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of Buyer in connection herewith. Neither the execution and delivery nor the performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of Buyer in connection herewith conflicts with, violates or results in any breach, or constitutes a default or causes an acceleration of any

 

2.

 


obligation, of (a) any judgment, decree, order, statute, rule or regulation applicable to Buyer, (b) any permit, agreement or other instrument to which Buyer is a party or by which Buyer or any of its assets is bound, or (c) any provision of Buyer’s charter documentation.

4.3 Investment Purpose . Buyer is making the investment for its own account for investment purposes and not with a view to the sale or distribution of the Acquired Equity. Buyer has no intention to sell or otherwise transfer the Acquired Equity to anyone for at least nine (9) months following the purchase of the Acquired Equity.

4.4 Due Diligence . Buyer has made such investigation of the Company as it deemed appropriate to obtain information regarding the financial condition of the Company and to evaluate the merits and risks of this investment. Buyer has had the opportunity to ask questions of, and receive answers from, representatives of the Company concerning the financial condition and business prospects of the Company and the information provided to Buyer. Management of the Company has satisfactorily answered all inquiries that Buyer has put to it concerning the business affairs of the Company.

SECTION 5

REPRESENTATIONS AND WARRANTIES OF SELLER

REGARDING THE COMPANY

Seller represents and warrants to Buyer as follows:

5.1 Organization, Authority and Capacity . The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has full power and authority to own, lease and operate its assets and properties and carry on its business as and where such assets and properties are now owned or leased and as such business is presently being conducted. The Company is qualified as a foreign entity to do business in the locations set forth in Schedule 5.1 which are all states where the failure to so qualify would have a Material Adverse Effect on the Company or its business.

5.2 No Consents or Conflicts . Except as set forth on Schedule 5.2 : (a) No consent of, or filing with, any Governmental Authority or third party is required in connection with the execution, delivery or performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of the Company in connection herewith; and (b) Neither the execution and delivery nor the performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of the Company in connection herewith conflicts with, violates or results in any breach, or constitutes a default or causes an acceleration of any obligation, of (i) any judgment, decree, order, statute, rule or regulation applicable to the Company or Seller, (ii) any permit, license, agreement or other instrument to which the Company or Seller is a party or is bound or by which the Company’s assets is subject, or (iii) any provision of any of the Company’s charter documents.

 

3.

 


5.3 Books and Records .

(a) The Company currently has 1,000,000 Units issued and outstanding. All of the issued and outstanding Units have been duly authorized and issued, pursuant to the terms of the Company’s operating agreement dated as of September 1, 2000. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Company to issue, sell, or otherwise cause to become outstanding any of its Units. The Company does not own, beneficially or of record, any equity or ownership interest in any other Person.

(b) The books of account, minute books, ownership record books, and other records of the Company are complete and correct and have been maintained in accordance with sound business practices, including the maintenance of an adequate system of internal controls. The minute books of the Company contain accurate and complete records of all meetings held of, and corporate action taken by, the members, the Board of Managers, and committees of the Board of Managers of the Company. At the Closing, all of those books and records will be in the possession of the Company.

5.4 Financial Statements . Set forth on Schedule 5.4 are the following financial statements (the “ Financial Statements ”): (i) the Company’s audited balance sheet and related statements of operations, member’s equity, and cash flows for the fiscal years ended August 31, 2005 and August 31, 2006; and (ii) the Company’s unaudited balance sheet (the “ Company Balance Sheet ”) and related statement of income for period ending April 30, 2007. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby and present fairly, in all material respects, the financial condition of the Company as of such dates and the results of operations for the periods specified; provided , that the unaudited Financial Statements described above are subject to normal year-end adjustments and absence of footnotes, none of which are, individually or in the aggregate, material.

5.5 No Liabilities . To Seller’s Knowledge the Company has no Liabilities of any kind (contingent or otherwise) except (a) as reflected on the Company Balance Sheet, (b) future performance obligations under contracts, (c) liabilities incurred in the ordinary course of business, since the date of the Company Balance Sheet, and (d) Liabilities related to the Pre-Close Qualified Plan Matters or contingent liabilities in proceedings listed in Schedule 5.9 .

5.6 No Changes . Except as set forth on Schedule 5.6 and Schedule 5.9 , since January 1, 2007, the Company has conducted its business only in the ordinary course of business and there has not been any:

 

  (a) issuance, sale or transfer any Units or other equity securities, securities convertible into Units or other equity securities or warrants, options or other rights to acquire Units or other equity securities, or any bonds or debt securities;

 

  (b) amendment to the charter documents of the Company;

 

  (c)

payment or increase by the Company of any bonuses, salaries, or other compensation to any member, manager, officer, other than in the ordinary course of business and in accordance with previously adopted compensation plans

 

4.

 


 

or except in the ordinary course of business and consistent with past practice employ or enter into any employment, severance, or similar contract with any manager, officer, or employee;

 

  (d) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any employees;

 

  (e) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, having a Material Adverse Effect, the properties, assets, business, financial condition, or prospects of the Company;

 

  (f) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to the Company of at least $20,000;

 

  (g) sale (other than sales of inventory in the ordinary course of business), lease, or other disposition of any asset or property of the Company or mortgage, pledge, or imposition of any Lien on any material asset or property of the Company, including the sale, lease, or other disposition of any of the Intellectual Property Rights;

 

  (h) cancellation or waiver of any claims or rights with a value to the Company in excess of $10,000;

 

  (i) material change in the accounting methods used by the Company; or

 

  (j) agreement, whether oral or written, by the Company to do any of the foregoing.

5.7 Receivables . To Seller’s Knowledge the accounts receivable reflected on the Company Balance Sheet are stated thereon in accordance with GAAP, consistently applied. The accounts receivable of the Company net of allowance for doubtful accounts (i) are bona fide receivables representing amounts due with respect to actual, arm’s length transactions entered into in the ordinary course of business, (ii) are legal, valid and binding obligations of the obligors, and (iii) are good and collectible in accordance with their terms.

5.8 Compliance with Laws . Except with respect to claims as set forth in Schedule 5.9 , the Company is not, nor at any time in the past has been, in violation of any Law, including, without limitation, any Law pertaining to securities (including, without limitation, the Securities Act, the Exchange Act and state “blue sky” Laws), environmental protection, occupational health or safety, employee benefits, or employment practices which would have a Material Adverse Effect on the Company or its business. The Company is the holder of, and has all of the, permits and licenses applicable to or necessary to conduct its business in compliance with Laws. All such permits and licenses are in full force and effect, and no proceeding is pending or threatened to revoke or limit any of them.

 

5.

 


5.9 No Litigation . Except as set forth on Schedule 5.9 , there is no claim, litigation, investigation or proceeding pending or threatened against the Company. There are no pending or threatened controversies, grievances or claims by any employee or former employee of the Company with respect to their employment, compensation, benefits or working conditions, nor is there any reasonable basis upon which any such possible grievance or claim could be based. Except as set forth on Schedule 5.9 , there are no pending or threatened claims by any party against the Company relating to products sold or services performed by the Company, nor to Seller’s Knowledge is there any reasonable basis upon which any such claim could be based.

5.10 Taxes . Except as set forth in Schedule 5.10:

(a) the Company has accurately prepared and duly and timely filed, or caused to be duly and timely filed, all federal, state, foreign and local Tax returns and reports required to be filed by it, (b) the Company has paid, or has made adequate provision or set up an adequate accrual or reserve (in each case as reflected on the Financial Statements) for the payment of, all Taxes shown to be owing on such returns, (c) the accrual for Taxes shown on the Financial Statements is sufficient to cover all Liabilities of the Company for Taxes (including, without limitation, interest through the date of the Financial Statements and any additions to Taxes or penalties) that have accrued in respect of periods through the date of such Financial Statements for which returns and reports as of such date were not yet due, and (d) the Company is not a party to any action or proceeding, nor is any such action or proceeding threatened, by any Governmental Authority for the assessment or collection of any Taxes, and no deficiency notices or reports have been received by the Company in respect of any deficiencies for any Taxes. The Company has not elected pursuant to the Code to be treated as a Subchapter S Corporation or collapsible corporation pursuant to Section 341(f) or Section 1362(a) of the Code, nor has it made any other election pursuant to the Code that would have a Material Adverse Effect on the Company.

5.11 Suppliers and Customers and Conflicts . None of the Company’s customers or suppliers has notified the Company in writing that it intends to cancel or otherwise substantially modify its relationship with the Company or limit its services, supplies or materials to the Company, or its usage or purchase of the services and products of the Company either as a result of the transactions contemplated hereby or otherwise that would have a Material Adverse Effect on the Company or its business. Except with respect to non-disclosure agreements entered into in the ordinary course of business, the Company is not a party to, or otherwise subject to, any contract or agreement that (a) limits or purports to limit its ability to compete in any way with any person or entity, or (b) restricts it from disclosing any information in any way.

5.12 Absence of Certain Business Practices . Neither the Company, or any other person acting on its behalf, directly or indirectly, has given or agreed to give any gift or similar benefit to any Person which (a) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (b) if not given in the past, might have had an adverse effect on the assets, properties, business or operations of the Company, or (c) if not continued in the future, might adversely affect the Company’s assets, operations or its prospects or which might subject the Company to suit or penalty in any private or governmental litigation or proceeding.

 

6.

 


5.13 Intellectual Property . Schedule 5.13 lists all Intellectual Property Rights owned or used by the Company or in which (as noted on such Schedule) the Company has any rights or licenses. Except as and to the extent set forth in Schedule 5.13 , the Company has such rights of ownership or use in the Intellectual Property Rights as are necessary to enable the Company to conduct all phases of its business in the manner presently conducted, and such use does not conflict with, infringe, or otherwise violate any rights of any Person. Except as and to the extent set forth in Schedule 5.13 , there have been no actions (threatened or otherwise) before the U.S. Patent and Trademark Office or other judicial, arbitration, or other adversary actions or proceedings, or written inquiries or notices regarding any such action or proceeding, concerning the Intellectual Property Rights listed in Schedule 5.13 . Except as set forth on Schedule 5.13 , the Company has the exclusive right to use all of the Intellectual Property Rights listed in Schedule 5.13 . None of the Intellectual Property Rights have been used, divulged, or appropriated for the benefit of any past or present employees or any other Person, or to the detriment of the Company.

5.14 Contracts Generally . Schedule 5.14 contains a complete and accurate list of the following Contracts to which the Company is a party or pursuant to which the Company has any direct or indirect Liability:

(a) all Contracts requiring payments in the aggregate in excess of $50,000;

(b) all Contracts with a remaining term in excess of one (1) year;

(c) all Contracts with, among or between the Company and any Affiliate or Affiliates of the Company;

(d) all loan, financing, security, or other Contracts evidencing or relating to indebtedness, guarantees, or Liens;

(e) all Contracts with distributors, dealers or sales representatives;

(f) all management, employment, severance, nondisclosure, noncompetition, or agency Contracts;

(g) all labor Contracts and collective bargaining agreements;

(h) all Contracts containing covenants limiting the freedom to compete with any Person or in any geographic area or market;

(i) all Contracts relating to Intellectual Property Rights;

(j) all Contracts with customers;

(k) all Contracts pursuant to which the Company leases real property or personal property;

 

7.

 


(l) all Contracts entered into outside of the ordinary course of business; and

(m) all other Contracts material to the conduct and operation of the Company’s business.

5.15 Compliance with Contracts . With respect to the Contracts identified in Schedule 5.14 :

(a) the Company is not in default under or in violation of any provisions thereof which would result in a Material Adverse Effect on the Company;

(b) no event has occurred which, with notice or lapse of time or both, would constitute such a default or violation;

(c) each such Contract is a legal, valid and binding obligation of the Company and of any other party thereto; and

(d) to Seller’s Knowledge there is no default under, or any violation of any provisions of, any of the foregoing by any other party thereto which would have a Material Adverse Effect on the Company.

5.16 Product Warranty . Except as set forth on Schedule 5.16 , (a) each product sold or furnished by the Company has been sold or furnished in conformity with all applicable contractual commitments and all express and implied warranties; (b) to Seller’s Knowledge the Company has no Liability (and there is no basis for any present or future demand, action, or proceeding against the Company giving rise to any Liability) for the furnishing of replacement products or additional products at below market prices or for any other damages in connection with any such product; and (c) to Seller’s Knowledge no product delivered by the Company is subject to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of the applicable Contract.

5.17 Product Liability . To Seller’s Knowledge and except as set forth on Schedule 5.17 , the Company has no Liability (and there is no basis for any present or future demand, action, or proceeding against the Company giving rise to any Liability) arising out of any injury to individuals or property as a result of the ownership, possession, or use of any product sold, used or delivered by the Company.

5.18 Employment . There are no pending grievances or claims before the Equal Employment Opportunity Commission or any other Governmental Authority by any employee or former employee of any of the Company with respect to his or her employment, termination of employment or any compensation or employee benefits (other than routine claims for benefits under a Benefit Plan). The Company is not a party to any collective bargaining agreement or employee grievance procedure or dispute resolution mechanism nor to Seller’s Knowledge is there threatened or underway any union organizational activities or proceedings with respect to employees of the Company. Since January 1, 2004, there has been no labor strike, slowdown or stoppage pending or threatened against the Company.

 

8.

 


5.19 Employee Benefits . Except as provided in Schedule 5.19 , the Company has not maintained, sponsored, contributed to or incurred any Liability under any Benefit Plan (as defined below) that is subject to any provision of Title IV of ERISA or Section 412 of the Code. Except as provided in Schedule 5.19 , the Company has not incurred any obligation to contribute to or any Liability under any “multi-employer plan” within the meaning of Section 4001(a)(3) of ERISA, or ever participated in any “multiple employer plan” within the meaning of Section 413(c) of the Code. Except as provided in Schedule 5.19 the Company does not have(or in the event of any termination or withdrawal would not have) any actual or potential Liability for any termination or complete or partial withdrawal from any such multi-employer plan or multiple employer plan. Except as provided in Schedule 5.19 , to Seller’s Knowledge, the terms of each Benefit Plan of the Company are, and each Benefit Plan has been established, maintained and administered, in compliance with the requirements of all laws, including ERISA, and, where applicable, section 401 of the Code and any other provisions of the Code related to any tax-favored treatment intended for such Benefit Plan or applicable to plans or trusts of its type, subject to the timely execution of any legally required update amendments, and each Benefit Plan has been administered in accordance with its terms. Except as provided in Schedule 5.19 , to Seller’s Knowledge, there are not now, nor have there been, any transactions involving any of the Company’s Benefit Plans which are prohibited under ERISA, the Code or any other Law. As of the date hereof, to Seller’s Knowledge there are no pending or threatened claims by or on behalf of any of the Company’s Benefit Plans or by any Company employee alleging a violation of the Benefit Plan terms or breach or breaches of fiduciary duties or violations of other applicable state or federal law which could result in Liability on the part of the Company or any of the Company’s Benefit Plan under ERISA or any other law, nor to Seller’s Knowledge is there any basis for such a claim. Except as provided in Schedule 5.19 all returns, reports, disclosure statements and premium payments required to be made under ERISA and the Code with respect to the Company’s Benefit Plans have been timely filed or delivered. Each Benefit Plan of the Company that is intended to be qualified under Section 401(a) or 401(k) of the Code is so qualified and has received a determination letter from the Internal Revenue Service covering all amendments required to be adopted to date and there are no circumstances which exist that are reasonably likely to adversely affect the tax-qualified status of such Benefit Plan or result in the revocation of such letter. Except as provided in Schedule 5.19 the Company has made all contributions and payments required to be made to or under each of its Benefit Plans within the time prescribed by Law or, if earlier, the terms of the Benefit Plan. Except as set forth on Schedule 5.19 , none of the Benefit Plans provide life insurance, medical or health benefits to Persons who are not current employees of the Company or their dependents, except as required by Part 6 of Title I of ERISA or any similar state law or provides severance benefits to any active or former employee. Except as provided in Schedule 5.19 the Company has retained the right to unilaterally amend or terminate each Benefit Plan to the fullest extent permitted by Law. Complete and correct copies of all of the following documents either have been delivered to Buyer or will be delivered to Buyer prior to Closing: (i) all Benefit Plans which the Company has at any time during the preceding six years maintained or contributed to, and all amendments thereto and summary plan descriptions thereof, if any, including accurate summaries of any such Benefit Plans which are oral, (ii) all Forms 5500 prepared or filed for any Benefit Plan for the most recent two years, and (iii) all determination letters issued by the Internal Revenue Service with respect to any Benefit Plan. To Seller’s Knowledge, no payment due to any employee, former employee, director, consultant or agent as a result of the transactions contemplated by this Agreement will or could be

 

9.

 


characterized as an “excess parachute payment” within the meaning of Section 280G of the Code. The term “Benefit Plan” means each “employee benefit plan,” as such term is defined in Section 3(3) of ERISA, and any other fringe benefit program or similar plan or arrangement, including without limitation any employee loan, incentive compensation, bonus, profit sharing, deferred compensation, severance, change of control, unit option or purchase plan, phantom unit or unit appreciation rights plan, guaranteed annual income plan or arrangement, noncompetition or consulting agreement.

5.20 Inventory . The inventories reflected on the Company Balance Sheet are stated thereon in accordance with GAAP, consistently applied. Subject to reserves reflected in the Company Balance Sheet, as adjusted to reflect operations thereafter in accordance with past practices, the inventory of the Company is suitable for sale in the ordinary course of business in accordance with past practices.

5.21 Insurance . Schedule 5.21 contains a description of each insurance policy, bond or other form of insurance maintained by the Company as of the date of this Agreement and for the three (3) years prior to the date of this Agreement (the “ Insurance Policies ”). All the Insurance Policies are in full force and effect and the Company is not in default with respect to its obligations under any of the Insurance Policies. Since January 1, 2004, no written notice of cancellation or termination has been received by the Company with respect to any Insurance Policy. No Insurance Policy contains a provision that would permit the termination, limitation, lapse, exclusion or change in the terms of coverage of such Insurance Policy (including, without limitation, change in the limits of liability) by reason of the consummation of the transactions contemplated by this Agreement. Schedule 5.21 contains a list of claims made under any of the Insurance Policies at any time since January 1, 2004.

5.22 Title to Assets . Except as set forth on Schedule 5.22 , the Company owns all of its assets free and clear of all Liens.

5.23 No Misrepresentations . No representation or warranty made by Seller in this Agreement, the Schedules or Exhibits hereto, or any certificate or document delivered in connection herewith contains any untrue statement of a material fact or omits to state a fact required to be stated therein or herein or necessary to make the statements and facts contained therein or herein, in light of the circumstances under which they are made, not false or misleading. Copies of all documents delivered or made available to Buyer by Seller or the Company were complete and accurate copies of such documents.

SECTION 6

REPRESENTATIONS AND WARRANTIES OF SELLER

REGARDING THE TRANSACTION

Seller represents and warrants to Buyer as follows:

6.1 Authority and Capacity . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller has full power, capacity and authority to execute, deliver, and perform this Agreement, and all other agreements, instruments and documents to be executed and delivered by it in connection herewith, in accordance with their respective

 

10.

 


terms. This Agreement, and all the other agreements, instruments and documents to be executed and delivered herewith, have been duly executed and delivered by Seller, and each constitutes the legal, valid and binding obligation of the Seller, enforceable against Seller in accordance with its terms.

6.2 No Consents or Conflicts . Except as set forth on Schedule 6.2 , no consent of, or filing with, any Governmental Authority or third party is required in connection with the execution, delivery or performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of Seller in connection herewith. Neither the execution and delivery nor the performance of this Agreement or any of the other agreements, instruments or documents to be delivered by or on behalf of Seller in connection herewith conflicts with, violates or results in any breach, or constitutes a default or causes an acceleration of any obligation, of (a) any judgment, decree, order, statute, rule or regulation applicable to Seller, (b) any permit, agreement or other instrument to which Seller is a party or is bound, or (c) any provision of Seller’s charter documentation

6.3 Ownership of Units . Seller owns the Acquired Equity free and clear of all Liens.

6.4 Brokerage . No Person is or will become entitled, by reason of any agreement or arrangement entered into or made by or on behalf of Seller, to receive any commission, brokerage, finder’s fee or other similar compensation in connection with the consummation of the transactions contemplated by this Agreement.

SECTION 7

PRE-CLOSING COVENANTS

The Parties agree as follows with respect to the period from and after the execution of this Agreement until the earlier to occur of either the Closing or the termination of this Agreement:

7.1 General . Each of the Parties will use commercially reasonable efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing conditions set forth in Section 8 below).

7.2 Third Party Consents . Buyer will use commercially reasonable efforts to obtain the third-party consents set forth on Schedule 4.2 . Seller will use commercially reasonable efforts to obtain the third-party consents set forth on Schedule 5.2 and on Schedule 6.2 .

7.3 Regulatory Matters and Required Approvals . Each of the Parties will give any notices to, make any filings with, and use commercially reasonable efforts to obtain any authorizations, consents, and approvals of Governmental Authorities necessary in order either to consummate the transactions contemplated hereby or for the Company to conduct its businesses after Closing.

 

11.

 


7.4 Operation of the Business . Except as Buyer may approve (with such approval not to be unreasonably withheld), or as otherwise expressly contemplated or permitted by this Agreement, Seller shall cause the Comp


 
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