AMOUNT OF CASH THAT IS EXPECTED TO BE REFLECTED ON THE CLOSING DATE BALANCE
SHEET IS EQUAL TO OR GREATER THAN $500,000; LESS
(IV)
ALL BONUSES OR OTHER COMPENSATION PAID OR PROMISED BY SMITH
MARITIME TO ITS EMPLOYEES PURSUANT TO SECTION 6.12(C), INCLUDING ALL EMPLOYMENT
OR OTHER TAXES PAYABLE BY SMITH MARITIME IN CONNECTION WITH SUCH AMOUNTS; AND
At the Effective Time, the Merger Consideration shall be paid by wire transfer
to the Seller Parties in the amounts set forth on Schedule 2.8 to an account or
accounts designated in writing by the Seller Parties.
If the Closing Date
Balance Sheet, as finally determined pursuant to Section 6.11, would result in a
change to the Merger Consideration as calculated on the Closing Date (due to
variances in prepaid revenue or cash on hand), then, within ten business days
after such final determination, the Merger Consideration shall be so adjusted
and Buyer shall pay to the Seller Parties, or the Seller Parties shall refund to
Buyer, the amount in cash of such adjustment, as the case may be;
(B)
ALL SUCH EQUITY INTERESTS SHALL NO LONGER BE OUTSTANDING AND SHALL
AUTOMATICALLY BE CANCELLED AND SHALL CEASE TO EXIST, AND THE SELLER PARTIES
SHALL CEASE TO HAVE ANY RIGHTS WITH RESPECT THERETO, EXCEPT THE RIGHT TO RECEIVE
THE MERGER CONSIDERATION; AND
(C)
THE MEMBERSHIP INTERESTS OF BUYER ISSUED AND OUTSTANDING
IMMEDIATELY PRIOR TO THE EFFECTIVE TIME SHALL BE CONVERTED INTO AND EXCHANGED
FOR VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE MEMBERSHIP INTERESTS IN THE
SURVIVING ENTITY.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH SELLER PARTY
Each Seller Party, severally and not jointly, represents and warrants to Buyer
and the Partnership that, as applied solely to such Seller Party, the following
are true, correct and complete as of the date of this Agreement and will be
true, correct and complete as of the Closing Date:
SECTION 3.1
CORPORATE STATUS AND GOOD STANDING; CITIZENSHIP.
(A)
235LX IS A LIMITED LIABILITY COMPANY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF WASHINGTON, WITH
FULL LIMITED LIABILITY COMPANY POWER AND AUTHORITY UNDER ITS GOVERNING DOCUMENTS
TO OWN AND LEASE ITS PROPERTIES AND TO CONDUCT BUSINESS AS THE SAME EXISTS ON
THE DATE HEREOF AND ON THE CLOSING DATE.
(B)
SELLER PARTY IS A CITIZEN OF THE UNITED STATES WITHIN THE MEANING
OF CHAPTER 505 OF TITLE 46 OF THE UNITED STATES CODE, FOR THE PURPOSE OF
OPERATING THE VESSELS IN THE COASTWISE TRADE OF THE UNITED STATES.
SECTION 3.2
AUTHORIZATION.
14
(A)
SELLER PARTY HAS ALL REQUISITE POWER AND AUTHORITY UNDER ITS
GOVERNING DOCUMENTS, AND ITS MEMBERS OR TRUSTEES, AS APPLICABLE, HAVE TAKEN ALL
NECESSARY ACTION TO AUTHORIZE IT, TO EXECUTE AND DELIVER THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO, TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREIN AND THEREIN AND TO TAKE ALL ACTIONS REQUIRED TO BE TAKEN BY IT PURSUANT
TO THE PROVISIONS HEREOF AND THEREOF.
A CERTIFIED COPY OF RESOLUTIONS OR A
CERTIFICATION, AS THE CASE MAY BE,