Additional Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to effect the transactions contemplated hereby are subject to the reasonable satisfaction of each of the following conditions, any of which may be waived, in writing, by Merger Sub or Acquiror: (a) The representations and warranties of Target and the Target Stockholders set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement (except to the extent that such representations speak as of an earlier date) and as of the Closing Date as though made on and as of the Closing Date, except that representations and warranties which specifically relate to a particular date or period shall be true and correct as of such date and for such period, and Acquiror and Merger Sub shall have received a certificate to such effect, with respect to the representations and warranties set forth in ARTICLE III, signed on behalf of Target by an officer of Target authorized to execute agreements on Target’s behalf, as well as a like certificate signed by the Target Stockholders; (b) Target and the Target Stockholders shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date, and Acquiror and Merger Sub shall have received a certificate to such effect signed on behalf of Target by an officer of Target, as well as a like certificate signed by the Target Stockholders; (c) The principal terms of the Merger shall have been duly approved by the affirmative vote of 100% of the Target Shares outstanding immediately prior to the Effective Time; (d) Each of the Target Stockholders shall have executed and delivered an offer letter in substantially the form attached hereto as Exhibit D-1; each of the Certain Employees listed on Schedule 6.2(d) shall have executed and delivered an Offer Letter in substantially the form attached hereto as Exhibit D-2; each other employee of Target listed on Schedule 6.2(d) shall have executed an delivered an Offer Letter in substantially the form attached hereto as Exhibit D-3; and each other employee who accepts employment with Acquiror shall have executed and delivered an offer letter in substantially the form attached hereto as Exhibit D-3; (e) Target shall have delivered to Acquiror Schedule 1.5, which shall contain an allocation schedule, in form and substance reasonably satisfactory to Acquiror, indicating the amount and type of Merger Consideration due to each Target Stockholder. Target shall have also delivered to Acquiror an allocation schedule reasonably satisfactory to Acquiror, indicating the amount of the Acquiror’s common stock which shall be issued to full-time Target employees pursuant to Section 5.1(c); (f) Each of the Target Stockholders shall have executed and delivered the Securityholders Agreement; (g) Each Target Stockholder shall have entered into a Vesting Agreement with Acquiror; (h) Acquiror and Merger Sub shall have received from Target such other documents as their counsel shall have reasonably requested, in form and substance reasonably satisfactory to such counsel; (i) Target shall have delivered to Acquiror and Merger Sub the written consents of all third parties required to complete the Merger; (j) Each of the Target Stockholders shall have executed and delivered to Acquiror an Employee Innovations and Proprietary Rights Assignment Agreement in substantially the form attached hereto as Exhibit E-1; and each of the employees of Target who accepts employment with Acquiror shall have executed and delivered to Acquiror an Employee Innovations and Proprietary Rights Assignment Agreement in substantially the form attached hereto as Exhibit E-2; (k) Each of the Target Stockholders shall have executed a release, in a form reasonably satisfactory to Acquiror, releasing Acquiror, Merger Sub and Target from all claims against Target, Predecessor or the Surviving Corporation; (l) Each of the Target Stockholders shall have executed and delivered to Acquiror a Non-Competition and Non-Interference Agreement in substantially the form attached hereto as Exhibit F; (m) All outstanding warrants, options or rights of any kind to purchase any securities of Target shall have been exercised, cancelled or terminated, and Acquiror and Merger Sub shall have received satisfactory evidence of the foregoing; (n) Acquiror shall have received certificates representing all outstanding Target Shares; (o) Target and/or Predecessor shall have terminated any 401(k) plan and other profit sharing plan maintained by them, unless Acquiror, in its sole and absolute discretion, agrees to sponsor and maintain such plan by providing Target with written notice of such election. Unless Acquiror provides such notice to Target, Acquiror shall have received from Target evidence that any such 401(k) or other profit sharing plans have been terminated pursuant to resolutions of Target’s Board and Predecessor’s members or managers, as applicable (the form and substance of which resolutions shall be subject to review and approval of Acquiror) effective as of immediately prior to the Effective Time; (p) At the Closing, Target shall deliver to Acquiror: (i) a statement (in such form as may be reasonably requested by counsel to Acquiror) conforming to the requirements of Section 1.897-2(h)(1)(i) of the Treasury Regulations under the Code, and (ii) a notice for filing with the IRS (in such form as may be reasonably requested by counsel to Acquiror) conforming to the requirements of Section 1.897-2(h)(2) of the Treasury Regulations under the Code; and (q) Acquiror shall have received executed documentation evidencing the consummation of the Reorganization.
Appears in 1 contract
Sources: Merger Agreement (Kintera Inc)
Additional Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to effect the transactions contemplated hereby are subject to the reasonable satisfaction of each of the following conditions, any of which may be waived, in writing, by Merger Sub or Acquiror:
(a) The representations and warranties of Target and the Target Stockholders set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement (except to the extent that such representations speak as of an earlier date) and as of the Closing Date as though made on and as of the Closing Date, except that representations and warranties which specifically relate to a particular date or period shall be true and correct as of such date and for such period, and Acquiror and Merger Sub shall have received a certificate to such effect, with respect to the representations and warranties set forth in ARTICLE III, signed on behalf of Target by an officer of Target authorized to execute agreements on Target’s 's behalf, as well as a like certificate signed by the Target Stockholders;
(b) Target and the Target Stockholders shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date, and Acquiror and Merger Sub shall have received a certificate to such effect signed on behalf of Target by an officer of Target, as well as a like certificate signed by the Target Stockholders;
(c) The principal terms of the Merger shall have been duly approved by the affirmative vote of 100% of the Target Shares outstanding immediately prior to the Effective Time;
(d) Each of the Target Stockholders shall have executed and delivered an offer letter in substantially the form attached hereto as Exhibit D-1; each of the Certain Employees listed on Schedule 6.2(d) shall have executed and delivered an Offer Letter in substantially the form attached hereto as Exhibit D-2; each other employee of Target listed on Schedule 6.2(d) shall have executed an delivered an Offer Letter in substantially the form attached hereto as Exhibit D-3; and each other employee who accepts employment with Acquiror shall have executed and delivered an offer letter in substantially the form attached hereto as Exhibit D-3;
(e) Target shall have delivered to Acquiror Schedule 1.5, which shall contain an allocation schedule, in form and substance reasonably satisfactory to Acquiror, indicating the amount and type of Merger Consideration due to each Target Stockholder. Target shall have also delivered to Acquiror an allocation schedule reasonably satisfactory to Acquiror, indicating the amount of the Acquiror’s 's common stock which shall be issued to full-time Target employees pursuant to Section 5.1(c);
(f) Each of the Target Stockholders shall have executed and delivered the Securityholders Agreement;
(g) Each Target Stockholder shall have entered into a Vesting Agreement with Acquiror;
(h) Acquiror and Merger Sub shall have received from Target such other documents as their counsel shall have reasonably requested, in form and substance reasonably satisfactory to such counsel;
(i) Target shall have delivered to Acquiror and Merger Sub the written consents of all third parties required to complete the Merger;
(j) Each of the Target Stockholders shall have executed and delivered to Acquiror an Employee Innovations and Proprietary Rights Assignment Agreement in substantially the form attached hereto as Exhibit E-1; and each of the employees of Target who accepts employment with Acquiror shall have executed and delivered to Acquiror an Employee Innovations and Proprietary Rights Assignment Agreement in substantially the form attached hereto as Exhibit E-2;
(k) Each of the Target Stockholders shall have executed a release, in a form reasonably satisfactory to Acquiror, releasing Acquiror, Merger Sub and Target from all claims against Target, Predecessor or the Surviving Corporation;
(l) Each of the Target Stockholders shall have executed and delivered to Acquiror a Non-Competition and Non-Interference Agreement in substantially the form attached hereto as Exhibit F;
(m) All outstanding warrants, options or rights of any kind to purchase any securities of Target shall have been exercised, cancelled or terminated, and Acquiror and Merger Sub shall have received satisfactory evidence of the foregoing;
(n) Acquiror shall have received certificates representing all outstanding Target Shares;
(o) Target and/or Predecessor shall have terminated any 401(k) plan and other profit sharing plan maintained by them, unless Acquiror, in its sole and absolute discretion, agrees to sponsor and maintain such plan by providing Target with written notice of such election. Unless Acquiror provides such notice to Target, Acquiror shall have received from Target evidence that any such 401(k) or other profit sharing plans have been terminated pursuant to resolutions of Target’s 's Board and Predecessor’s 's members or managers, as applicable (the form and substance of which resolutions shall be subject to review and approval of Acquiror) effective as of immediately prior to the Effective Time;
(p) At the Closing, Target shall deliver to Acquiror: (i) a statement (in such form as may be reasonably requested by counsel to Acquiror) conforming to the requirements of Section 1.897-2(h)(1)(i) of the Treasury Regulations under the Code, and (ii) a notice for filing with the IRS (in such form as may be reasonably requested by counsel to Acquiror) conforming to the requirements of Section 1.897-2(h)(2) of the Treasury Regulations under the Code; and
(q) Acquiror shall have received executed documentation evidencing the consummation of the Reorganization.
Appears in 1 contract
Sources: Merger Agreement (Kintera Inc)