Additional Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction (or waiver by Parent and Merger Sub, if permissible under applicable Law) of the following conditions at or prior to the Closing: (a) (i) Each representation or warranty of the Company contained in Sections 4.2(a), 4.3(a), 4.3(b), 4.23, 4.25, 4.26 and 4.27 shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such period), (ii) each representation and warranty of the Company contained in Sections 4.2(b) and 4.28 shall be true and correct in all material respects as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing and (iii) the representations and warranties of the Company contained in any other section of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth therein) as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such period), except where the failure of such representations and warranties to be true and correct would not constitute a Company Material Adverse Effect; (b) The Company shall have performed in all material respects all of its material obligations under this Agreement to be performed by it at or prior to the Closing; (c) Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated as of the Closing Date, certifying on behalf of the Company that the conditions specified in Section 7.2(a), Section 7.2(b) and Section 7.2(d) have been satisfied; (d) Since the date of this Agreement, there shall not have occurred a Company Material Adverse Effect; (e) The Company shall have received at least $295,833,000 in purchase price by reason of the occurrence of the Intel Closing; (f) Completion of novation, assignment, termination, or expiration (and receipt of written notice from the Company thereof) of all 6.9(a)(1) Contracts and all contracts listed in Section 6.9(a)(2) of the Company Disclosure Schedule; and (g) Since the date of this Agreement, no Contracts, assets (other than cash and cash equivalents as expressly permitted in the Intel Agreement) or liabilities primarily relating to the Intel Business or the Intel Companies shall have been assigned or novated (or otherwise transferred) to the Company or any of its Subsidiaries (other than the Intel Companies).
Appears in 1 contract
Additional Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate effect the Merger are further shall be subject to the satisfaction (fulfillment at or waiver prior to the Effective Time of the following additional conditions, unless waived by Parent and Merger Sub, if permissible under applicable Law) of the following conditions at or prior to the Closing:
(a) (i) Each representation or warranty of the The Company contained in Sections 4.2(a), 4.3(a), 4.3(b), 4.23, 4.25, 4.26 and 4.27 shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such period), (ii) each representation and warranty of the Company contained in Sections 4.2(b) and 4.28 shall be true and correct have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Effective Time; provided that, with respect to obligations that are qualified by materiality, the Company shall have performed such obligations, as so qualified, in all respects. Parent and Merger Sub shall have received a certificate of the date of this Agreement and at and as President or Chief Executive Officer of the Closing with the same force and effect as if made at and as of the Closing and Company to that effect.
(iiib) the The representations and warranties of the Company contained in any other section of this Agreement shall be true and correct (without giving effect to any limitation as to materiality “materiality” or Company “Material Adverse Effect Effect” qualifiers set forth therein) as of the date of this Agreement and at and as of the Closing Effective Time with the same force and effect as if made at and as of the Closing Effective Time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such period), except where the failure of such representations and warranties to be true and correct would not constitute a Company (without giving effect to any “materiality” or “Material Adverse Effect;
(b” qualifiers set forth therein) The Company shall have performed would not, individually or in all material respects all of its material obligations under this Agreement to be performed by it at or prior to the Closing;
(c) aggregate, result in a Material Adverse Effect. Parent and Merger Sub shall have received a certificate signed by of the President or Chief Executive Officer and Chief Financial Officer of the Company, dated Company as to the satisfaction of this Section 6.3(b). The representations and warranties of the Company contained in the second sentence of Section 3.2(a) (Capitalization) and Section 3.20 (Brokers) shall be true and correct as of the Closing Datedate of this Agreement; provided, certifying however, that this condition shall be deemed satisfied to the extent that, after giving effect to any failure of such representation to be true and correct, (i) the aggregate Merger Consideration that would be payable pursuant to Section 1.6(a) hereof in respect of all shares of Company Common Stock actually issued and outstanding as of the date hereof plus (ii) the aggregate consideration payable pursuant to Section 1.8(a) in respect of all Options actually issued and outstanding as of the date hereof would not exceed, the Aggregate Consideration Amount by more than one percent (1.0%) of the Aggregate Consideration Amount.
(c) The Company shall have obtained and provided to Parent and Merger Sub copies of evidence with respect to the Required Approvals and Consents, the terms of which consents shall be reasonably satisfactory to Parent and Merger Sub.
(d) There shall not exist any pending Action, suit, investigation or proceeding brought by any Governmental Entity (i) that could reasonably be expected to enjoin, restrain or prohibit (or that enjoins, restrains or prohibits) the Merger or the other transactions contemplated hereby (ii) seeking to impose any material limitation on behalf the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company that and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel the conditions specified Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, and if such business or assets relate to the Company or any of its Subsidiaries, such business or assets are material to the financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and if such business or assets relate to Parent or any of its Subsidiaries, such business or assets are material to the financial condition, results of operations or prospects of Parent and its Subsidiaries, taken as a whole. No Order shall be in Section 7.2(a)effect, Section 7.2(b) and Section 7.2(d) no law shall have been satisfied;enacted or shall be deemed applicable to the Merger, which has any of the effects set forth in clauses (i) through (iii) in this Section 6.3(d).
(de) ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ shall have each executed and delivered a Non-Competition Agreement substantially in the forms of Exhibit A-1 and Exhibit A-2 hereto, respectively (the “Non-Competition Agreement”).
(f) Since the date of this Agreement, there shall not have occurred any event, occurrence or change that has had a Company Material Adverse Effect;Effect on the Company.
(eg) The holders of no more than twenty-two and one-half percent (22.5%) of the shares of Company Common Stock shall have demanded and not lost or withdrawn appraisal rights.
(h) The Company shall prepare and deliver to Parent at the Closing a certificate stating that the Company is not a “United States Real Property Holding Corporation” as defined in Section 897 of the Code in accordance with Treasury Regulation promulgated under Sections 897 and 1445 of the Code.
(i) The Company shall have received at least $295,833,000 in purchase price by reason delivered to Parent resignations from the directors and officers of the occurrence Company and each Subsidiary of the Intel Closing;Company in office immediately prior to the Effective Time resigning their respective positions as directors and officers.
(fj) Completion The Company shall have delivered to Parent certificates of novation, assignment, termination, or expiration (and receipt of written notice good standing for the Company from the Company thereof) Secretary of all 6.9(a)(1) Contracts State of the State of Delaware and all contracts each of the jurisdictions listed in Section 6.9(a)(2) on Schedule 3.1 of the Company Disclosure Schedule; and
(g) Since the Schedules, each dated a reasonable date of this Agreement, no Contracts, assets (other than cash and cash equivalents as expressly permitted in the Intel Agreement) or liabilities primarily relating prior to the Intel Business or Closing Date, and certificates of good standing for the Intel Companies shall have been assigned or novated (or otherwise transferred) to Subsidiaries of the Company or any from the applicable Governmental Entities in such Subsidiaries’ jurisdictions of its Subsidiaries (other than the Intel Companies)organization.
Appears in 1 contract
Sources: Merger Agreement (Inforte Corp)
Additional Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate effect the Merger are further shall also be subject to the satisfaction (or waiver by Parent and Merger Sub, if permissible under applicable Law) of the following conditions at or prior to the ClosingEffective Time of each of the following conditions, any and all of which may be waived in whole or in part by Parent or Merger Sub:
(a) (i) Each representation or warranty The representations and warranties of the Company contained in the first sentence of Section 3.1 and Sections 4.2(a3.3(a), 4.3(a3.4, 3.5, 3.6, 3.7(i), 4.3(b), 4.23, 4.25, 4.26 3.9(b) and 4.27 3.27 shall be true and correct in all respects as (except in the case of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such periodSection 3.3(a), (ii) each representation and warranty of the Company contained in Sections 4.2(b) and 4.28 shall be true and correct in all material respects as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing and (iii) the representations and warranties of the Company contained in for any other section of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth thereinde minimis inaccuracy) as of the date of this Agreement and at and as of the Closing with the same force and effect Effective Time as if made at and as of the Closing such time (other than those representations and warranties any such representation or warranty that address matters only is made as of a particular specified date or only with respect to a specific period of time, which need only shall be so true and correct as of such specified date) and (ii) the other representations and warranties of the Company in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all respects, as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or with respect to warranty that is made as of a specified date, which shall be so true and correct as of such periodspecified date), except where the failure of such representations and warranties to be so true and correct correct, either individually or in the aggregate, has not had, and would not constitute reasonably be expected to have, a Company Material Adverse Effect;
(b) The Company shall have performed or complied in all material respects with all of its material obligations under agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the ClosingEffective Time;
(c) The Company shall have delivered to Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated as of the Closing Date, certifying executed on behalf of the Company by the chief executive officer of the Company certifying that each of the conditions specified set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(d7.2(b) have been satisfied;; and
(d) Since the date of this Agreement, there There shall not have occurred a Company Material Adverse Effect;
(e) The Company shall have received at least $295,833,000 be pending in purchase price U.S. federal district court any suit, action or proceeding by reason of the occurrence of the Intel Closing;
(f) Completion of novationany Governmental Entity against Merger Sub, assignmentParent, termination, or expiration (and receipt of written notice from the Company thereof) of all 6.9(a)(1) Contracts and all contracts listed in Section 6.9(a)(2) of the Company Disclosure Schedule; and
(g) Since the date of this Agreement, no Contracts, assets (other than cash and cash equivalents as expressly permitted in the Intel Agreement) or liabilities primarily relating to the Intel Business or the Intel Companies shall have been assigned or novated (or otherwise transferred) to the Company or any of its their respective Subsidiaries (i) seeking to restrain or prohibit from retaining any portion of Parent's or Merger Sub's assets or to restrain or prohibit from acquiring any material portion of the Company's businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company, Parent or Parent's Subsidiaries; (ii) challenging, seeking to restrain or prohibit the Merger or the other than transactions contemplated by the Intel Companies)Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided however, this Section 7.2(d) shall not be operative with respect to any such pending suit, action or proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Entity's motion for preliminary injunction; and provided, further, that this Section 7.2(d) shall be deemed to be fulfilled and satisfied and of no further force and effect after August 31, 2014.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Additional Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate effect the Merger are further shall also be subject to the satisfaction (or waiver by Parent and Merger Sub, if permissible under applicable Law) of the following conditions at or prior to the ClosingEffective Time of each of the following conditions, any and all of which may be waived in whole or in part by Parent or Merger Sub:
(a) (i) Each representation or warranty The representations and warranties of the Company contained in the first sentence of Section 3.1 and Sections 4.2(a3.3(a), 4.3(a3.4, 3.5, 3.6, 3.7(i), 4.3(b), 4.23, 4.25, 4.26 3.9(b) and 4.27 3.27 shall be true and correct in all respects as (except in the case of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be true and correct as of such date or with respect to such periodSection 3.3(a), (ii) each representation and warranty of the Company contained in Sections 4.2(b) and 4.28 shall be true and correct in all material respects as of the date of this Agreement and at and as of the Closing with the same force and effect as if made at and as of the Closing and (iii) the representations and warranties of the Company contained in for any other section of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth thereinde minimis inaccuracy) as of the date of this Agreement and at and as of the Closing with the same force and effect Effective Time as if made at and as of the Closing such time (other than those representations and warranties any such representation or warranty that address matters only is made as of a particular specified date or only with respect to a specific period of time, which need only shall be so true and correct as of such specified date) and (ii) the other representations and warranties of the Company in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all respects, as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or with respect to warranty that is made as of a specified date, which shall be so true and correct as of such periodspecified date), except where the failure of such representations and warranties to be so true and correct correct, either individually or in the aggregate, has not had, and would not constitute reasonably be expected to have, a Company Material Adverse Effect;
(b) The Company shall have performed or complied in all material respects with all of its material obligations under agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the ClosingEffective Time;
(c) The Company shall have delivered to Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated as of the Closing Date, certifying executed on behalf of the Company by the chief executive officer of the Company certifying that each of the conditions specified set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(d7.2(b) have been satisfied;; and
(d) Since the date of this Agreement, there There shall not have occurred a Company Material Adverse Effect;
(e) The Company shall have received at least $295,833,000 be pending in purchase price U.S. federal district court any suit, action or proceeding by reason of the occurrence of the Intel Closing;
(f) Completion of novationany Governmental Entity against Merger Sub, assignmentParent, termination, or expiration (and receipt of written notice from the Company thereof) of all 6.9(a)(1) Contracts and all contracts listed in Section 6.9(a)(2) of the Company Disclosure Schedule; and
(g) Since the date of this Agreement, no Contracts, assets (other than cash and cash equivalents as expressly permitted in the Intel Agreement) or liabilities primarily relating to the Intel Business or the Intel Companies shall have been assigned or novated (or otherwise transferred) to the Company or any of its their respective Subsidiaries (i) seeking to restrain or prohibit from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit from acquiring any material portion of the Company’s businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company, Parent or Parent’s Subsidiaries; (ii) challenging, seeking to restrain or prohibit the Merger or the other than transactions contemplated by the Intel Companies)Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided however, this Section 7.2(d) shall not be operative with respect to any such pending suit, action or proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Entity’s motion for preliminary injunction; and provided, further, that this Section 7.2(d) shall be deemed to be fulfilled and satisfied and of no further force and effect after August 31, 2014.
Appears in 1 contract