Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions: (a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects. (b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at and as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect. (c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk. (d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3. (e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties. (f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing. (g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 3 contracts
Sources: Merger Agreement (Quartzsea Acquisition Corp), Agreement and Plan of Merger (Quetta Acquisition Corp), Agreement and Plan of Merger (Rising Dragon Acquisition Corp.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Mergers and the other Transactions shall be subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in all material respectswriting, unless exclusively by the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.Company:
(ba) All of the (i) The representations and warranties of the Purchaser Parties Parent contained in Article VI the first sentence of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (iSection 5.03(a) shall be true and correct at in all but de minimis respects on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date, except with respect to shares of Parent Class A Stock redeemed pursuant to the Parent Stockholder Redemption; (ii) the Fundamental Representations of Parent shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contain herein) on and as of the Closing Date as though made on and as of the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (iii) the representations and warranties need only contained in Section 5.08 shall be true and correct on and as of the Closing Date as though made on and as of the Closing Date; and (iv) all other representations and warranties of Parent set forth in Article V hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contained herein) on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except in the case of this clause (iiv) where the failure of such representations and (ii)warranties of Parent to be so true and correct, other than as would not individually or in the aggregate aggregate, has not had and is not reasonably be expected to have a Parent Material Adverse Effect.
(b) Parent, Merger Sub and Merger Sub II shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date; provided, that for purposes of this Section 8.02(b), a covenant of Parent, Merger Sub or Merger Sub II shall only be deemed to have not been performed if Parent, Merger Sub or Merger Sub II has failed to cure within 20 days after written notice by the Company (or if earlier, the Outside Date).
(c) There Parent shall have been no eventdelivered to the Company a certificate, change or occurrence which individually or together with any other eventsigned by an executive officer of Parent and dated as of the Closing Date, change or occurrence, could reasonably be expected certifying as to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskmatters set forth in Section 8.02(a) and Section 8.02(b).
(d) The Company persons listed on Section 8.02(d) of the Parent Disclosure Letter shall have received a certificate signed by an authorized officer resigned from all of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3their positions and offices with Parent, Merger Sub and Merger Sub II.
(e) From The Parent Charter shall be amended and restated in the date hereof until form of the ClosingParent A&R Charter, the Purchaser Parties Parent Certificate of Designations shall have been in material compliance with the reporting requirements under the Securities Act adopted and approved and the Exchange Act applicable to Parent Bylaws shall be amended and restated in the Purchaser Partiesform of the Parent A&R Bylaws.
(f) The directors designated by Parent shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 7.09, available to Parent for payment of the Company shall have been appointed to Transaction Costs and the board of directors of the Parent, effective as of Parent Transaction Costs at the Closing.
(g) The Purchaser Parties shall have executed and delivered funds contained in the Trust Account after all amounts required to be paid pursuant to the Parent Stockholder Redemptions have been paid, together with the PIPE Investment Amount actually received by Parent, the Equity Financing Proceeds and the Series X Proceeds shall, before giving effect to the payment of all Parent Transaction Costs and Company each Additional Agreement to which it is a partyTransaction Costs, equal or exceed $450,000,000 (“Minimum Required Funds”).
Appears in 1 contract
Sources: Agreement and Plan of Merger (InterPrivate III Financial Partners Inc.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI VII of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at and as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by Purchaser shall remain listed on Nasdaq and the Company additional listing application for the Closing Payment Shares shall have been appointed to the board of directors approved by Nasdaq. As of the ParentClosing Date, effective Purchaser shall not have received any written notice from Nasdaq that it has failed, or would reasonably be expected to fail to meet the Nasdaq listing requirements as of the ClosingClosing Date for any reason, where such notice has not been subsequently withdrawn by Nasdaq or the underlying failure appropriately remedied or satisfied.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is Mergers are also subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them satisfaction at or prior to the Closing Date Effective Time of the following conditions, any or all of which may be waived, in all material respectswhole or in part, unless to the extent permitted by Section 7.4 and applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.Law:
(b) All Section 6.3.1 Each of the representations and warranties of Parent and the Purchaser Parties Merger Subs contained in Article VI of this AgreementSections 4.2, disregarding all qualifications 4.3, 4.4, 4.19, 4.21, 4.22 and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) 4.23 shall be true and correct at in all material respects as of the Effective Time as though made on and as of the Effective Time (except that those representations and warranties which address matters only as of a particular date need only be true and correct in all material respects as of such date).
Section 6.3.2 Each of the representations and warranties of Parent and the Merger Subs contained in this Agreement and (ii) Agreement, other than those listed in Section 6.3.1, shall be true and correct as of the Closing Date Effective Time as though made on and as of the Effective Time (except for representation that those representations and warranties that speak which address matters only as of a specific particular date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date); provided, however, that the condition in this Section 6.3.2 shall be deemed to be satisfied so long as any failure of such representations and warranties to be true and correct, either individually or in the case aggregate, has not had a Parent Material Adverse Effect (it being understood that, for purposes of (i) determining the accuracy of such representations and (ii)warranties, other than as would not in the aggregate reasonably be expected to have a all “Parent Material Adverse Effect.
(c” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) There and would not otherwise prevent or materially delay consummation of the Mergers; provided further, that, notwithstanding the foregoing, Parent and the Merger Subs’ representations and warranties contained in Section 4.31 shall have been no event, change or occurrence which individually or together be true and correct on and as of the Effective Time with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect the same effect as though such representations and warranties were made on and as of the Purchaser Parties, regardless of whether it involved a known risk.
(d) Effective Time. The Company shall have received a certificate signed of the Chief Executive Officer or Chief Financial Officer of Parent to that effect.
Section 6.3.3 Parent and the Merger Subs shall have performed or complied in all material respects with all agreements and covenants required by an authorized officer of Purchaser Parties this Agreement to be performed or complied with by it on or prior to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) Effective Time. The directors designated by the Company shall have been appointed to the board of directors received a certificate of the ParentChief Executive Officer or Chief Financial Officer of Parent to that effect.
Section 6.3.4 Since the date of this Agreement, effective there shall not have occurred and be continuing any changes or events which, individually or in the aggregate, constitute or have resulted in a Parent Material Adverse Effect.
Section 6.3.5 Parent will make (or cause to be made) the payments required to be made on the Closing Date pursuant to Article II.
Section 6.3.6 The Company shall have received the ▇▇▇▇▇▇ Opinion dated as of the Closing.
(g) The Purchaser Parties shall have executed Closing Date and delivered addressed to the Company each Additional Agreement to which it is a partyCompany.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is subject to the satisfaction, or the waiver at the Company’s sole and absolute discretion, of all of the following further conditions:
(a) The Purchaser Parties SPAC shall have duly performed all of their its obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties SPAC contained in Article VI V of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or SPAC Material Adverse Effect, regardless of whether it involved a known risk, shall: shall (i) be true and correct at and as of the date of this Agreement except as provided in the SPAC Disclosure Letter pursuant to Article V, and (ii) be true and correct as of the Closing Date except as provided in the SPAC Disclosure Letter (except for with respect to the representation and warranties that speak as of a specific date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the each case of the foregoing sub-clauses (i) and (ii), other than as would not in the aggregate reasonably be expected to have a SPAC Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a No SPAC Material Adverse Effect on shall have occurred since the Purchaser Parties, regardless of whether it involved a known riskSigning Date which is continuing.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties SPAC shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser PartiesSPAC.
(e) SPAC shall remain listed on Nasdaq through the Closing Date.
(f) The directors designated by the Company Available Closing Cash Amount shall have been appointed to the board of directors of the Parent, effective as of the Closingnot be less than US$35,000,000.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Sources: Merger Agreement (Iron Spark I Inc.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is transactions contemplated hereby in accordance with the terms of this Agreement are also subject to the satisfaction, fulfillment or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties Since the date of this Agreement, Equitex shall have duly performed all continued to conduct its operations in accordance with the provisions of their obligations hereunder required to be performed Section 4.1 and the Certificate of Designation shall have been adopted and approved by them at or prior to Equitex’s board of directors and filed with appropriate authorities in the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respectsState of Delaware.
(b) All The representations of the representations Equitex and warranties of the Purchaser Parties Merger Sub contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and accurate as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing DateEffective Time, in which case such representations and warranties need only to be true and correct as of such earlier date), all respects (in the case of any representation containing any materiality qualification) or in all material respects (i) and (ii), other than as would not in the aggregate reasonably case of any representation without any materiality qualification). Equitex and Merger Sub, respectively, shall in all material respects have performed each obligation and agreement and complied with each covenant to be expected performed and complied with by them hereunder at or prior to have a Material Adverse Effectthe Effective Date.
(c) There Equitex and Merger Sub shall have been no eventobtained all consents and approvals necessary to consummate the transactions contemplated by this Agreement, change including without limitation those set forth on Schedule 3.2, in order that the transactions contemplated herein not constitute a breach or occurrence which individually violation of, or together with result in a right of termination or acceleration of, or creation of any other eventencumbrance on any of Equitex’s or Merger Sub’s assets pursuant to the provisions of, change any agreement, arrangement or occurrenceundertaking of or affecting Equitex or any license, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless franchise or permit of whether it involved a known riskor affecting Equitex.
(d) The Company Merger Sub shall have received a certificate signed by an authorized officer executed the Certificate of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3Merger.
(e) From Equitex shall have furnished to the date hereof until Company a certificate of the ClosingChief Executive Officer and the Chief Financial Officer of Equitex, dated as of the Effective Date, in which such officers shall certify that, to their best Knowledge, the Purchaser Parties shall conditions set forth in Sections 6.3(a), (b) and (c) have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Partiesfulfilled.
(f) The directors designated Equitex shall have furnished to the Company (i) copies of the text of the resolutions by which the corporate action on the part of Equitex necessary to approve this Agreement and the Certificate of Merger and the transactions contemplated hereby and thereby were taken, (ii) a copy of the certificate of incorporation of Equitex, certified by the Company shall have been appointed to Secretary of State of Delaware, and one or more certificates from the board Secretary of directors State of Delaware and any other jurisdictions evidencing the good standing of Equitex in such jurisdictions in which it transacts business, and (iii) a certificate of the Parent, effective corporate secretary of Equitex dated as of the Closing.
(g) The Purchaser Parties shall have executed and delivered Effective Date certifying to the Company each Additional Agreement that copies of the resolution referred to which it is a partyin clause (i) above are true, correct and complete copies of such resolutions and that such resolutions were duly adopted and have not been amended or rescinded, and certifying that the certificates furnished pursuant to clause (ii) above are true, correct and complete as received from such governmental offices.
Appears in 1 contract
Sources: Merger Agreement (Equitex Inc)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Mergers and the other Transactions shall be subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in all material respectswriting, unless exclusively by the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.Company:
(ba) All of the (i) The representations and warranties of the Purchaser Parties Parent contained in Article VI the first sentence of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (iSection 5.03(a) shall be true and correct at in all but de minimis respects on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date, except with respect to shares of Parent Class A Stock redeemed pursuant to the Parent Stockholder Redemption; (ii) the Fundamental Representations of Parent shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contain herein) on and as of the Closing Date as though made on and as of the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (iii) the representations and warranties need only contained in Section 5.08 shall be true and correct on and as of the Closing Date as though made on and as of the Closing Date; and (iv) all other representations and warranties of Parent set forth in Article V hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contained herein) on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except in the case of this clause (iiv) where the failure of such representations and (ii)warranties of Parent to be so true and correct, other than as would not individually or in the aggregate aggregate, has not had and is not reasonably be expected to have a Parent Material Adverse Effect.
(b) Parent, Merger Sub and Merger Sub II shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date; provided, that for purposes of this Section 8.02(b), a covenant of Parent, Merger Sub or Merger Sub II shall only be deemed to have not been performed if Parent, Merger Sub or Merger Sub II has failed to cure within 20 days after written notice by the Company (or if earlier, the Outside Date).
(c) There Parent shall have been no eventdelivered to the Company a certificate, change or occurrence which individually or together with any other eventsigned by an executive officer of Parent and dated as of the Closing Date, change or occurrence, could reasonably be expected certifying as to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskmatters set forth in Section 8.02(a) and Section 8.02(b).
(d) The Company persons listed on Section 8.02(d) of the Parent Disclosure Letter shall have received a certificate signed by an authorized officer resigned from all of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3their positions and offices with Parent, Merger Sub and Merger Sub II.
(e) From The Parent Charter shall be amended and restated in the date hereof until form of the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act Parent A&R Charter and the Exchange Act applicable to Parent Bylaws shall be amended and restated in the Purchaser Partiesform of the Parent A&R Bylaws.
(f) The directors designated by Parent shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 7.09, available to Parent for payment of the Company shall have been appointed to Transaction Costs and the board of directors of the Parent, effective as of Parent Transaction Costs at the Closing.
(g) The Purchaser Parties shall have executed and delivered funds contained in the Trust Account after all amounts required to be paid pursuant to the Parent Stockholder Redemptions have been paid, together with the PIPE Investment Amount and the Equity Financing Proceeds to the extent received from any PIPE Investor in connection with a reduction of their subscription for Committed Shares (as defined in the Subscription Agreement), shall, before giving effect to the payment of all Parent Transaction Costs and Company each Additional Agreement to which it is a partyTransaction Costs, equal or exceed $200,000,000 (“Minimum Required Funds”).
Appears in 1 contract
Sources: Merger Agreement (InterPrivate III Financial Partners Inc.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is Merger and the other transactions contemplated hereby are also subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them satisfaction at or prior to the Closing Date of the following conditions, any or all of which may be waived in all material respectswriting by the Company, unless in whole or in part, to the extent permitted by applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.law:
(ba) All each of the representations and warranties of the Purchaser Parties Parent and Merger Sub contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and except to the extent that the breach thereof shall not constitute a Parent Material Adverse Effect as of the date of this Agreement Closing Date as though made on and (ii) be true and correct as of the Closing Date (except for representation to the extent such representations and warranties that speak as of a specific date prior specifically relate to the Closing Datean earlier date, in which case such representations and warranties need only to shall be true and correct as of such earlier date), in and the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed of the President or the Chief Financial Officer of each of Parent and Merger Sub, dated the Closing Date, to such effect;
(b) Parent and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required by an authorized officer this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Company shall have received a certificate of Purchaser Parties the President or the Chief Financial Officer of each of Parent and Merger Sub, dated the Closing Date, to that effect;
(c) Since the date of this Agreement, there shall not have been any material adverse change or change which in the aggregate are materially adverse, in the financial condition, operations or current business of the Parent (excluding changes caused by general economic or industry-wide conditions or resulting from any change in law or GAAP);
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P. shall have delivered to the Company its written opinion (which may be based upon certain representations of management of the Company and Parent and others and upon certain assumptions) as of the date that the Proxy Statement is first mailed to the Company's shareholders substantially to the effect set forth in clauses that (ai) through (cthe Merger will constitute a reorganization within the meaning of section 368(a) of this Section 10.3.the Code, (ii) Parent, Merger Sub and the Company will each be a party to that reorganization within the meaning of section 368(b) of the Code, and (iii) no gain or loss for U.S. federal income tax purposes will be recognized by the holders of Company Common Stock upon receipt of shares of Parent Common Stock in the Merger, except with respect to any cash received in lieu of a fractional share interest in Parent Common Stock, and such opinion shall not have been withdrawn or modified in any material respect;
(e) From the date hereof until the Closing, the Purchaser Parties The Bylaws of Parent shall have been amended, effective as of the Effective Time, in material compliance with the reporting requirements under the Securities Act Section 5.1 of this Agreement and the Exchange Act applicable persons specified in such Section shall have been elected or appointed to the Purchaser Parties.position described in that Section; and
(f) The directors designated by the Company shall have been appointed obtained the consent or approval of each person (other than the governmental approvals referred to in Section 6.1(d)), whose consent or approval shall be required in order to permit the board of directors Company to consummate the transactions contemplated hereby, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a material adverse effect (i) on the Company or (ii) upon the consummation of the Parent, effective as of the Closingtransactions contemplated by this Agreement.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Sources: Merger Agreement (Intellicall Inc)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is Transactions are subject to the satisfactionfulfillment, or on the waiver at the Company’s discretionClosing Date, of all each of the following further conditions:conditions (any or all of which may be waived by such party in whole or in part in its sole discretion):
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Parent, Purchaser Parties and Merger Sub contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at (without giving effect to any materiality or “Parent Material Adverse Effect” qualifications set forth therein) on the date hereof and as of the date of this Agreement and (ii) be true and correct Closing Date as though made as of the Closing Date (except for representation or, in the case of representations and warranties that speak address matters only as of a specific date prior particular date, as of such date) except to the Closing Dateextent that the facts, in which case events and circumstances that cause such other representations and warranties need only to not be true and correct as of such earlier date), in the case of (i) and (ii), other than as dates would not prevent or materially delay the consummation of the Transactions;
(b) Parent, Purchaser and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by Purchaser and Merger Sub on or prior to the aggregate reasonably be expected to have a Material Adverse Effect.Closing Date;
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by of an authorized executive officer of Parent and an executive officer of Purchaser Parties to that the effect conditions set forth in clauses subsections (a) through and (cb) of this Section 10.3.7.3 have been satisfied;
(d) The Parent Class A Shares issuable in the Merger shall have been authorized for listing on the NYSE upon official notice of issuance; and
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance offered (with the reporting requirements under cooperation of the Securities Act and the Exchange Act applicable Company) Award Agreements executed by Purchaser to the Purchaser Parties.
(feach Participant allocated an award pursuant to Section 6.2(e) The directors designated by of the Company shall have been appointed to Disclosure Schedule, consistent with the board of directors allocations set forth on Section 6.2(e) of the ParentCompany Disclosure Schedule, effective as of may be modified pursuant to Section 6.2(e), which offer shall be automatically withdrawn if not accepted by executing and delivering a countersigned Award Agreement to Purchaser prior to the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Sources: Merger Agreement (PJT Partners Inc.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties SPAC shall have duly performed all of their its obligations hereunder required to be performed by them it at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties SPAC contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at and as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser PartiesSPAC, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties the SPAC to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) The Company shall have a gross amount of no less than $10,000,000 in cash and cash equivalents available to it immediately after the Closing, including the proceeds from the Trust Fund (prior to the payment of Transaction Costs).
(f) From the date hereof until the Closing, the Purchaser Parties SPAC shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the ClosingSPAC.
(g) The Purchaser Parties SPAC shall have executed remained listed on Nasdaq through the Closing Date.
(h) The SPAC’s unpaid debts and delivered liabilities as of immediately prior to the Company each Additional Agreement Closing, not including Transaction Costs and the Advisory Fee to which it is RedEight Capital Limited, Axiom Capital Management, Inc., and Earlybird Capital Inc., shall not exceed $500,000.
(i) The SPAC shall have delivered a partyfairness opinion of ClearThink Capital LLC or such other financial advisory firm designated by the SPAC, in form and substance reasonably satisfactory to the Company.
Appears in 1 contract
Sources: Merger Agreement (Nukkleus Inc.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is transactions contemplated hereby are subject to the satisfactionsatisfaction or, where permissible, waiver, on or prior to the waiver at the Company’s discretionClosing Date, of all of the following further conditions:
(a) (i) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained made by Parent in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and in all respects as of the date of this Agreement hereof, and (ii) shall be true and correct in all respects as of the Closing Date as if made as of the Closing Date (except for representation other than representations and warranties that speak made as of a specific date prior specified date), except where the failure to the Closing Date, be so true and correct (without giving effect to any materiality qualifications or thresholds contained in which case such representations and warranties need only to be true and correct as of such earlier datewarranties), individually and in the case of (i) and (ii)aggregate, other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
, (cii) There none of Parent, RV or Merger Sub shall have been no event, change breached or occurrence which individually or together failed to comply in any material respect with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of its obligations under this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party, or any of the Ancillary Agreements to which it is a party, provided that Parent, RV and Merger Sub shall have a 15 day period in which to cure breaches that are reasonably likely to be curable, and (iii) Parent shall have delivered to the Company a certificate dated the Closing Date and signed by an authorized officer of Parent to the effect set forth above in this Section 5.3(a).
(b) Each Ancillary Agreement shall have been executed and delivered by each party thereto other than the Company and shall be in full force and effect, in accordance with its terms.
(c) Parent shall have delivered a certificate to the Company certifying as to the amount of any reduction, if any, in the purchase price paid by Jamtis under the Netstream Acquisition Agreements, and the shareholders of RV shall have contributed to the capital of RV an aggregate of not less than $70,000,000 plus any additional amount required by Section 4.12, as equity in cash.
(d) The RV Class A Common Stock shall have been accepted for listing by a national securities exchange.
(e) Parent shall have caused to be duly elected as members of the board of directors of RV (i) the Chief Executive Officer of the Company, (ii) if requested by Promon, one "Disinterested Director" (as defined in the Articles of Incorporation of RV) nominated by Promon, and (iii) two or, if Promon shall not have nominated any Disinterested Director, three Disinterested Directors proposed by Parent and agreed by the Company, and each of such Disinterested Directors shall have agreed to serve in such capacity.
(f) The shareholders of RV shall have duly adopted the Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws of RV in the form attached as Exhibit C, and the board of directors of RV shall have duly adopted (i) a Board Policy in the form of Exhibit B and (ii) if any shares of Series A preferred stock of the Company are outstanding, a Certificate of Designation substantially in the form of Exhibit G.
(g) The Company shall have received an opinion of Bake▇ & ▇cKe▇▇▇▇, counsel to the Company, or other counsel of national reputation, dated on or about the date of the mailing to the Company shareholders of the Proxy Statement, which opinion shall be reconfirmed as of the Effective Time, to the effect that, on the basis of the facts, representations and assumptions set forth in such opinion, the Merger will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that RV, Merger Sub and the Company will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, such counsel may require and rely upon the Representation Letters.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Mergers and the other Transactions will be subject to the satisfaction, satisfaction at or prior to the waiver at the Company’s discretion, Closing of all each of the following further conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Purchaser Parties shall have duly performed all Fundamental Representations of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Parent will each be true and correct at and as of the date of this Agreement and (ii) be true and correct in all respects as of the Closing Date (except for representation and warranties that speak as of a specific date prior to though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representations representation and warranties need only to warranty will be true and correct as of such earlier date). The representations and warranties of Parent contained in Section 5.03(Capitalization) and Section 5.08 (Absence of Changes or Events) will each be true and correct in all respects other than de minimis inaccuracies as of the Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date. All other representations and warranties of Parent contained in this Agreement will be true and correct (without giving any effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the case Closing Date, as though made on and as of the Closing Date, except (i) to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether as of the Closing Date or such earlier date), other than taken as would a whole, does not result in the aggregate reasonably be expected to have a Parent Material Adverse Effect.
(b) Parent, First Merger Sub and Second Merger Sub will have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date, in each case in all material respects.
(c) There shall Parent will have been no eventdelivered to the Company a certificate, change or occurrence which individually or together with any other eventsigned by an executive officer of Parent and dated as of the Closing Date, change or occurrence, could reasonably be expected certifying as to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskmatters set forth in Section 8.02(a)-(b).
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (cpersons listed on Section 8.02(d) of this Section 10.3the Parent Disclosure Letter will have resigned from all of their positions and offices with Parent.
(e) From Parent will have delivered, or caused to be delivered, or will stand ready to deliver all of the date hereof until certificates, instruments, Contracts, Transaction Agreements and other documents specified to be delivered by it hereunder, including copies of the Closingdocuments to be delivered by Parent pursuant to Section 1.02(a), the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act duly executed by Parent, First Merger Sub and the Exchange Act applicable to the Purchaser PartiesSecond Merger Sub, as applicable.
(f) The directors designated by Parent Available Cash shall not be less than the Company shall have been appointed to the board of directors of the Parent, effective as of the ClosingMinimum Cash Amount.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Sources: Merger Agreement (InterPrivate II Acquisition Corp.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Mergers and the other Transactions shall be subject to the satisfaction, satisfaction at or prior to the waiver at the Company’s discretion, Closing of all each of the following further conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Purchaser Parties Fundamental Representations of Parent shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at in all material respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contain herein) on and as of the date hereof and the Closing Date as though made on and as of this Agreement the date hereof and the Closing Date (ii) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); and all other representations and warranties of Parent set forth in ARTICLE V hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contained herein) on and as of date hereof and the Closing Date as though made on and as of date hereof and the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representations representation and warranties need only to warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of Parent to be so true and correct, individually or in the case of (i) aggregate, has not had and (ii), other than as would is not in the aggregate reasonably be expected likely to have a Parent Material Adverse Effect.
(b) Parent, First Merger Sub and Second Merger Sub shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date, in each case in all material respects.
(c) There Parent shall have been no eventdelivered to the Company a certificate, change or occurrence which individually or together with any other eventsigned by an executive officer of Parent and dated as of the Closing Date, change or occurrence, could reasonably be expected certifying as to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskmatters set forth in Section 8.2(a) and Section 8.2(b).
(d) The persons listed on Section 8.2(d) of the Company Disclosure Letter shall have received a certificate signed by an authorized officer resigned from all of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3their positions and offices with Parent.
(e) From the date hereof until the Closing, the Purchaser Parties Parent shall have delivered or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by Parent pursuant to Section 1.3(a), duly executed by Parent, First Merger Sub and Second Merger Sub, as applicable, and there shall been in material compliance with no amendment, modification or termination of the reporting requirements under the Securities Act and the Exchange Act applicable Sponsor Agreement except as permitted pursuant to the Purchaser PartiesSection 7.23.
(f) The directors designated by Parent shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 7.14, available to Parent for payment of the Company shall have been appointed to Transaction Costs and the board of directors of the Parent, effective as of Parent Transaction Costs at the Closing.
(g) The Purchaser Parties amount of Parent Cash at the Closing, minus the aggregate amount of cash proceeds that will be required to satisfy the Parent Stockholder Redemptions, shall have executed and delivered to equal or exceed the Company each Additional Agreement to which it is a partyParent Minimum Cash.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations obligation of the Company to consummate effect the Closing is Merger and the other transactions contemplated herein are also subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties Parent shall have duly performed all paid by wire transfer of their obligations hereunder required to be performed by them at or prior immediately available funds to the Shareholders’ Account the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respectsPayment Amount.
(b) All Each of the representations and warranties of Parent and Merger Sub set forth in the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating Agreement (without giving effect to materiality or any “Parent Material Adverse Effect, regardless of whether it involved a known risk, shall: (i” or other materiality qualifications contained in such representations and warranties) be true and correct at and as of the date of this Agreement and (ii) shall be true and correct as of the Closing Date Effective Time as though made on and as of the Effective Time (except for representation that those representations and warranties that speak which address matters only as of a specific particular date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), except for such inaccuracies, individually or in the case of (i) and (ii)aggregate, other than as that would not in the aggregate reasonably be expected to have a Parent Material Adverse Effect, and the Company shall have received a certificate of an executive officer of Parent to that effect.
(c) There The covenants of Parent and Merger Sub contained in the Agreement that are required to have been performed by Parent and Merger Sub before the Effective Time shall have been no eventperformed in all material respects, change and the Company shall have received a certificate of an executive officer of Parent to that effect and to the effect that Section 6.03(f) has been satisfied.
(d) Parent shall have executed and delivered the Escrow Agreement in a form reasonably satisfactory to Escrow Agent and the Shareholders’ Representative.
(e) The Company (or occurrence Parent on behalf of the Company) shall have executed and delivered to each respective executive employee of the Company before the Effective Time who shall thereafter remain an employee of the Company, an employment agreement providing for the terms of such employment, including without limitation provisions for salary, benefits, severance, and change-of-control after the Effective Time, having format and content reasonably satisfactory to such executive employees, which approval shall not be unreasonably withheld.
(f) Since the date of this Agreement, there shall not have occurred and be continuing any event or development which, individually or together with any other eventin the aggregate, change has had or occurrence, could would reasonably be expected to have a Parent Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskEffect.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at and as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties Parent to the effect set forth in clauses (a) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties Parent shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser PartiesParent.
(f) The directors director designated by the Company shall have been appointed to the board of directors of the ParentPurchaser, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Closing is transactions contemplated hereby are subject to the satisfactionsatisfaction or, where permissible, waiver, on or prior to the waiver at the Company’s discretionClosing Date, of all of the following further conditions:
(a) (i0 The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained made by Parent in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and in all respects as of the date of this Agreement hereof, and (ii) shall be true and correct in all respects as of the Closing Date as if made as of the Closing Date (except for representation other than representations and warranties that speak made as of a specific date prior specified date), except where the failure to the Closing Date, be so true and correct (without giving effect to any materiality qualifications or thresholds contained in which case such representations and warranties need only to be true and correct as of such earlier datewarranties), individually and in the case of (i) and (ii)aggregate, other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
, (cII) There none of Parent, RV or Merger Sub shall have been no event, change breached or occurrence which individually or together failed to comply in any material respect with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties to the effect set forth in clauses (a) through (c) of its obligations under this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party, or any of the Ancillary Agreements to which it is a party, PROVIDED that Parent, RV and Merger Sub shall have a 15 day period in which to cure breaches that are reasonably likely to be curable, and (III) Parent shall have delivered to the Company a certificate dated the Closing Date and signed by an authorized officer of Parent to the effect set forth above in this Section 5.3(a).
(b) Each Ancillary Agreement shall have been executed and delivered by each party thereto other than the Company and shall be in full force and effect, in accordance with its terms.
(c) Parent shall have delivered a certificate to the Company certifying as to the amount of any reduction, if any, in the purchase price paid by Jamtis under the Netstream Acquisition Agreements, and the shareholders of RV shall have contributed to the capital of RV an aggregate of not less than $70,000,000 plus any additional amount required by Section 4.12, as equity in cash.
(d) The RV Class A Common Stock shall have been accepted for listing by a national securities exchange.
(e) Parent shall have caused to be duly elected as members of the board of directors of RV (I) the Chief Executive Officer of the Company, (II) if requested by Promon, one "Disinterested Director" (as defined in the Articles of Incorporation of RV) nominated by Promon, and (III) two or, if Promon shall not have nominated any Disinterested Director, three Disinterested Directors proposed by Parent and agreed by the Company, and each of such Disinterested Directors shall have agreed to serve in such capacity.
(f) The shareholders of RV shall have duly adopted the Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws of RV in the form attached as Exhibit C, and the board of directors of RV shall have duly adopted (I) a Board Policy in the form of Exhibit B and (II) if any shares of Series A preferred stock of the Company are outstanding, a Certificate of Designation substantially in the form of Exhibit G.
(g) The Company shall have received an opinion of Baker & McKenzie, counsel to the Company, or other counsel of national ▇▇▇▇tat▇▇▇, ▇▇▇ed on or about the date of the mailing to the Company shareholders of the Proxy Statement, which opinion shall be reconfirmed as of the Effective Time, to the effect that, on the basis of the facts, representations and assumptions set forth in such opinion, the Merger will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that RV, Merger Sub and the Company will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, such counsel may require and rely upon the Representation Letters.
Appears in 1 contract
Sources: Merger Agreement (Firstcom Corp)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Transactions shall be subject to the satisfaction, satisfaction at or prior to the waiver at the Company’s discretion, Closing of all each of the following further conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Purchaser Parties Fundamental Representations of Parent shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at in all but de minimis respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and (ii) be true on and correct as of the Closing Date as though made on and as of the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representations representation and warranties need only to warranty shall be true and correct as of such earlier date), ; and all other representations and warranties of Parent set forth in the case of Article IV hereof shall be true and correct in all material respects (i) and (ii), other than without giving effect to any limitation as would not in the aggregate reasonably be expected to have a “materiality” or “Parent Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date).
(b) Parent shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by Parent on or prior to the Closing Date, in each case in all material respects.
(c) There Parent shall have been no eventdelivered to the Company a certificate, change or occurrence which individually or together with any other eventsigned by an authorized representative of Parent and dated as of the Closing Date, change or occurrencecertifying as to the matters set forth in Section 7.2(a), could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskSection 7.2(b) and Section 7.2(d).
(d) The Company No Parent Material Adverse Effect shall have received a certificate signed by an authorized officer of Purchaser Parties to occurred since the effect set forth in clauses (a) through (c) date of this Section 10.3Agreement.
(e) From The persons listed on Schedule 7.2(e) of the date hereof until the Closing, the Purchaser Parties Company Disclosure Letter shall have been in material compliance resigned from all of their positions and offices with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser PartiesParent.
(f) The directors designated by the Company Parent shall have been appointed delivered or shall stand ready to the board of directors deliver all of the Parentcertificates, effective instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by Parent pursuant to Section 2.2(a), as of applicable.
(g) Parent shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 6.10, available to Parent at the Closing.
(gh) The Purchaser Parties amount of Parent Cash shall have executed and delivered to the Company each Additional Agreement to which it is a partyequal or exceed $250,000,000.
Appears in 1 contract
Sources: Business Combination Agreement (FTAC Athena Acquisition Corp.)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Merger and the other Transactions shall be subject to the satisfactionsatisfaction at or prior to the Closing, or the waiver at the Company’s discretionas applicable, of all each of the following further conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Purchaser Parties Fundamental Representations of SPAC shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at in all material respects on and as of the date of this Agreement and (ii) be true on and correct as of the Closing Date as though made on and as of the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties need only of SPAC contained in Section 4.07(a) shall be true and correct in all respects as of the date hereof and as of the Closing Date; and all other representations and warranties set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where any failures of such representations and warranties to be so true and correct, individually or in the case of (i) aggregate, has not had and (ii), other than as would not in the aggregate reasonably be expected to have a SPAC Material Adverse Effect.
(b) SPAC shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date, in each case in all material respects.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a No SPAC Material Adverse Effect on shall have occurred since the Purchaser Parties, regardless date of whether it involved a known riskthis Agreement.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties At the Effective Time (after giving effect to the effect set forth in clauses Closing and following the SPAC Shareholder Redemption), SPAC shall (a1) through not be a “▇▇▇▇▇ stock” or “blank check company” according to relevant Legal Requirements, and (c2) of this Section 10.3be compliant with the Nasdaq Global Market listing requirements.
(e) From the date hereof until the Closing, the Purchaser Parties SPAC shall have been met the SPAC Minimum Net Cash Requirement, subject to a deficiency of up to $150,000, as set forth in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser PartiesSection 6.23.
(f) The directors designated by SPAC shall have delivered to the Company shall have been appointed a list, certified by SPAC’s CFO, of each of its liabilities that does not appear (or that is greater than) those liabilities provided for in, or otherwise disclosed or reflected in the most recent balance sheet included in the SPAC Financial Statements, accounting, among other things, for (if not so accounted for in the SPAC Financial Statements) (a) the payment of any remaining Fee or expenses pursuant to the board of directors Marketing Agreement; (b) the final amount of the ParentA&R Sponsor Promissory Note, effective as after injecting any additional amounts needed to meet the SPAC Minimum Net Cash Requirement (subject to any shortfall of up to $150,000 therefrom) and subject to the ClosingPromissory Note Cap; and (c) all expenses incurred or owed in relation to the Transactions contemplated by this Agreement, including all fees for legal, accounting, audit, printing and other professional services in connection therewith, provided, however that the total of such liabilities, excluding (a) above, and assuming a Closing by no later than the Outside Date, shall not exceed an aggregate amount of $1,000,000.
(g) The Purchaser Parties SPAC shall have executed and confirmed the New Employment Agreements with each of the senior employees of the Company who had entered into such agreements.
(h) SPAC shall have delivered to the Company each Additional a certificate, signed by an authorized representative of SPAC and dated as of the Closing Date, certifying as to the matters set forth in Section 7.02(a), Section 7.02(b), Section 7.02(c) and Section 7.02(d).
(i) The Sponsor Share Surrender shall have been completed.
(j) SPAC and SPAC Sponsor shall have executed, and SPAC shall have delivered to SPAC Sponsor, in replacement of all existing promissory notes issued by SPAC to Sponsor, the A&R Sponsor Promissory Note.
(k) SPAC Board shall adopted the New Incentive Plan and created the New Incentive Plan Pool.
(l) SPAC and Merger Sub shall have delivered or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including the following:
(m) the Amended Registration Rights and Lock-Up Agreement to which it is a partyshall have been duly executed by SPAC and the SPAC Sponsor.
Appears in 1 contract
Sources: Business Combination Agreement (Moringa Acquisition Corp)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is transactions contemplated hereby in accordance with the terms of this Agreement are also subject to the satisfaction, fulfillment or the waiver at the Company’s discretion, of all of the following further conditions:
(a) The Purchaser Parties Since the date of this Agreement, Equitex shall have duly performed all continued to conduct its operations in accordance with the provisions of their obligations hereunder required to be performed Section 4.1 and the Certificate of Designation shall have been adopted and approved by them at or prior to Equitex's board of directors and filed with appropriate authorities in the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respectsState of Delaware.
(b) All The representations of the representations Equitex and warranties of the Purchaser Parties Merger Sub contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and accurate as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as of a specific date prior to the Closing DateEffective Time, in which case such representations and warranties need only to be true and correct as of such earlier date), all respects (in the case of any representation containing any materiality qualification) or in all material respects (i) and (ii), other than as would not in the aggregate reasonably case of any representation without any materiality qualification). Equitex and Merger Sub, respectively, shall in all material respects have performed each obligation and agreement and complied with each covenant to be expected performed and complied with by them hereunder at or prior to have a Material Adverse Effectthe Effective Date.
(c) There Equitex and Merger Sub shall have been no eventobtained all consents and approvals necessary to consummate the transactions contemplated by this Agreement, change including without limitation those set forth on Schedule 3.2, in order that the transactions contemplated herein not constitute a breach or occurrence which individually violation of, or together with result in a right of termination or acceleration of, or creation of any other eventencumbrance on any of Equitex's or Merger Sub's assets pursuant to the provisions of, change any agreement, arrangement or occurrenceundertaking of or affecting Equitex or any license, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless franchise or permit of whether it involved a known riskor affecting Equitex.
(d) The Company Merger Sub shall have received a certificate signed by an authorized officer executed the Certificate of Purchaser Parties to the effect set forth in clauses (a) through (c) of this Section 10.3Merger.
(e) From Equitex shall have furnished to the date hereof until Company a certificate of the ClosingChief Executive Officer and the Chief Financial Officer of Equitex, dated as of the Effective Date, in which such officers shall certify that, to their best Knowledge, the Purchaser Parties shall conditions set forth in Sections 6.3(a), (b) and (c) have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Partiesfulfilled.
(f) The directors designated Equitex shall have furnished to the Company (i) copies of the text of the resolutions by which the corporate action on the part of Equitex necessary to approve this Agreement and the Certificate of Merger and the transactions contemplated hereby and thereby were taken, (ii) a copy of the certificate of incorporation of Equitex, certified by the Company shall have been appointed to Secretary of State of Delaware, and one or more certificates from the board Secretary of directors State of Delaware and any other jurisdictions evidencing the good standing of Equitex in such jurisdictions in which it transacts business, and (iii) a certificate of the Parent, effective corporate secretary of Equitex dated as of the Closing.
(g) The Purchaser Parties shall have executed and delivered Effective Date certifying to the Company each Additional Agreement that copies of the resolution referred to which it is a partyin clause (i) above are true, correct and complete copies of such resolutions and that such resolutions were duly adopted and have not been amended or rescinded, and certifying that the certificates furnished pursuant to clause (ii) above are true, correct and complete as received from such governmental offices.
Appears in 1 contract
Sources: Merger Agreement (Equitex Inc)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate close the Closing transactions contemplated hereby is subject to the satisfaction, or the waiver at the Company’s discretion, satisfaction of all each of the following further conditions, any of which may be waived, in writing, executed by the Company:
(a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained Manager set forth in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) Agreement shall be true and correct at and in all material respects as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation as though made on and warranties that speak as of a specific date prior to the Closing Date, in which case such representations Date and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed on behalf of the Manager by an authorized executive officer of Purchaser Parties the Manager to such effect;
(b) The representations and warranties of the effect TCW Entities set forth in clauses (a) through this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date and the Company shall have received a certificate signed on behalf of each of the TCW Entities by its General Partner or Managing Director to such effect;
(c) The representations and warranties of Holdings set forth in this Agreement shall be true and correct in all material respects as of the date of this Section 10.3.Agreement and as of the Closing Date as though made on and as of the Closing Date and the Company shall have received a certificate signed on behalf of Holdings by the Managing Member of Holdings to such effect;
(d) The Manager shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and the Company shall have received a certificate signed on behalf of the Manager by an executive officer of the Manager to such effect;
(e) From the date hereof until the Closing, the Purchaser Parties Each of TCW Entities shall have been performed in all material compliance with respects all obligations required to be performed by it under this Agreement at or prior to the reporting requirements under the Securities Act Closing Date, and the Exchange Act applicable Company shall have received a certificate signed on behalf of each of the TCW Entities by its General Partner or Managing Director to the Purchaser Parties.such effect;
(f) The directors designated Holdings shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and the Company shall have been appointed received a certificate signed on behalf of Holdings by the Managing Member of Holdings to the board of directors of the Parent, effective as of the Closing.such effect;
(g) The Purchaser Parties Company shall have received the fully executed Amendment No. 1 to the Securities Purchase Agreement (the "AMENDED SECURITIES PURCHASE AGREEMENT"), in substantially the form attached hereto as EXHIBIT C;
(h) The Company shall have received the fully executed Voting Agreement, substantially in the form attached hereto as EXHIBIT D;
(i) The closing of the transactions contemplated by the Revolver shall occur simultaneously with or prior to the Closing;
(j) The Company has received an opinion from their financial advisor that the transactions contemplated by this Agreement are fair, from a financial point of view, to the stockholders of the Company;
(k) The Company has received a legal opinion from the Manager's, the TCW Entities' and delivered Holdings' legal counsel as to the matters listed in EXHIBIT E; and
(l) The Company shall have received from the Manager, the TCW Entities and Holdings such other documents as the Company or its counsel shall have reasonably requested, in form and substance reasonably satisfactory to the Company each Additional Agreement to which it is a partyand its counsel.
Appears in 1 contract
Sources: Termination and Release Agreement (American Residential Investment Trust Inc)
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is Merger shall be further subject to the satisfactionsatisfaction (or waiver, or the waiver at if permissible under Legal Requirements, by the Company’s discretion, ) as of all the Effective Time of each of the following further conditions:
(a) (i) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained Parent and Merger Sub set forth in Article VI Section 3.1 (Due Organization) and Section 3.3 (Authority; Binding Nature of this Agreement, disregarding ) shall have been accurate in all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at material respects on and as of the date of this Agreement and (ii) shall be true accurate on and correct as of the Closing Date as if made on and as of such date (except for representation and it being understood, in each case, that the accuracy of those representations or warranties that speak address matters only as of a specific date prior shall be measured (subject to the applicable materiality standard as set forth in this clause (i)) only as of such date) and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than Section 3.1 and Section 3.3) shall have been accurate on and as of the date of this Agreement and shall be accurate on and as of the Closing DateDate as if made as of such date, other than inaccuracies that do not constitute, and would not reasonably be expected to have, individually or in which case the aggregate, a Parent Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) the words “materially” or “material” or qualifications based on the term “Parent Material Adverse Effect” contained in such representations and warranties need shall be disregarded and (B) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to be true and correct the applicable materiality standard as set forth in this clause (ii)) only as of such earlier date).
(b) Each of Parent and Merger Sub shall have complied with, or performed, in all material respects all of their respective covenants and agreements that each of them is required to comply with or perform at or prior to the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse EffectClosing.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known risk.
(d) The Company shall have received a certificate signed executed on behalf of Parent by an authorized executive officer of Purchaser Parties to Parent confirming that the effect conditions set forth in clauses Section 6.3(a) and (ab) through (c) of this Section 10.3.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Partiesduly satisfied.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate effect the Closing is Merger are also subject to the satisfaction, or the waiver at the Company’s discretion, of all of the following further conditions:
(a) Each of the representations of Parent and Merger Sub contained in this Agreement will be true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of the Closing Date as though made on and as of the Closing Date, provided that those representations and warranties which address matters only as of a particular date will remain true and correct in all material respects (except that where any statement in a representation or warranty expressly includes a standard of materiality, such statement will be true and correct in all respects giving effect to such standard) as of such date. The Purchaser Parties shall Company will have duly received a certificate of a Vice President and the Chief Financial Officer of Parent to such effect.
(b) Parent will have, and will cause Merger Sub to have, performed or complied in all of their obligations hereunder material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at on or prior to the Closing Date in all material respects, unless the applicable obligation has Date. The Company will have received a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at and as of the date of this Agreement and (ii) be true and correct as of the Closing Date (except for representation and warranties that speak as certificate of a specific date prior Vice President and the Chief Financial Officer of Parent to the Closing Date, in which case such representations and warranties need only to be true and correct as of such earlier date), in the case of (i) and (ii), other than as would not in the aggregate reasonably be expected to have a Material Adverse Effecteffect.
(c) There shall Parent will have been no eventdelivered to the Company:
(i) certificates of good standing from the Delaware Secretary of State stating that each of Parent and Merger Sub is a validly existing corporation in good standing;
(ii) duly adopted resolutions of the Board of Directors of each of Parent and Merger Sub approving the execution, change delivery and performance of this Agreement and the instruments contemplated hereby, each certified by the Secretary or occurrence which individually the Assistant Secretary of the Company; and
(iii) a true and complete copy of the certificates of incorporation, as amended, of Parent and Merger Sub certified by the Secretary of State of the state of each of their incorporation, and a true and complete copy of the bylaws, as amended, of Parent and Merger Sub certified by the Secretary or together with any other eventAssistant Secretary of Parent and Merger Sub, change or occurrence, could reasonably be expected to have a Material Adverse Effect on the Purchaser Parties, regardless of whether it involved a known riskas applicable.
(d) The Company shall have received a certificate signed by an authorized officer opinion of Purchaser Parties counsel to Parent and Merger Sub, Hugh▇▇ & ▇uce, ▇.L.P., in the form of Exhibit E. In rendering such opinion, such counsel may rely on opinions of local counsel to the effect set forth in clauses (a) through (c) of this Section 10.3extent such counsel deems it reasonable to do so.
(e) From the date hereof until the Closing, the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties.
(f) The directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the Closing.
(g) The Purchaser Parties shall have executed and delivered to the Company each Additional Agreement to which it is a party.
Appears in 1 contract
Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Closing is Acquisition Merger and the other Transactions shall be subject to the satisfactionsatisfaction at or prior to the Closing, or the waiver at the Company’s discretionas applicable, of all each of the following further conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Purchaser Fundamental Representations of the SPAC Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects, unless the applicable obligation has a materiality qualifier in which case it shall be duly performed in all respects.
(b) All of the representations and warranties of the Purchaser Parties contained in Article VI of this Agreement, disregarding all qualifications and exceptions contained herein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true and correct at in all material respects on and as of the date of this Agreement and (ii) be true on and correct as of the Closing Date as though made on and as of the Closing Date (except for to the extent that any such representation and warranties that speak warranty expressly speaks as of a specific date prior to the Closing Datean earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties need only of SPAC contained in Section 4.08(a) shall be true and correct in all respects as of the date hereof and as of the Closing Date; and all other representations and warranties set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where any failures of such representations and warranties to be so true and correct, individually or in the case of (i) aggregate, has not had and (ii), other than as would not in the aggregate reasonably be expected to have a SPAC Material Adverse Effect.
(b) The SPAC Parties shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date, in each case in all material respects.
(c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a No SPAC Material Adverse Effect on shall have occurred since the Purchaser Parties, regardless date of whether it involved a known riskthis Agreement.
(d) The Company shall have received a certificate signed by an authorized officer of Purchaser Parties At the Acquisition Merger Effective Time (after giving effect to the effect set forth in clauses Closing and following the SPAC Shareholder Redemption), TopCo shall (a1) through not be a “▇▇▇▇▇ stock” or “blank check company” according to relevant Legal Requirements, and (c2) of this Section 10.3be compliant with the Nasdaq Global Market listing requirements.
(e) From the date hereof until the Closing, the Purchaser Parties SPAC Sponsor shall have been provided the SPAC Sponsor Investment, subject to a deficiency of up to $150,000 of the $500,000 target (and any associated forfeiture), as set forth in material compliance with the reporting requirements under the Securities Act Recitals and the Exchange Act applicable to the Purchaser Partiesin Section 6.24(b).
(f) The directors designated by SPAC shall have delivered to the Company shall have been appointed a list, certified by SPAC’s CFO, of each of its liabilities that does not appear (or that is greater than) those liabilities provided for in, or otherwise disclosed or reflected in the most recent balance sheet included in the SPAC Financial Statements, accounting, among other things, for (if not so accounted for in the SPAC Financial Statements) (i) the payment of any remaining Fee or expenses pursuant to the board of directors Marketing Agreement; (ii) the final amount of the ParentA&R Sponsor Promissory Note, effective as after injecting any additional amounts needed to cover all operational expenses of any kind incurred by SPAC until the Closing, including, without limitation, all general, administrative and overhead expenses, and further covering all costs associated with convening and conducting a general meeting for approval of the ClosingTransactions contemplated by this Agreement, as well as all fees for ongoing legal, accounting, audit and other professional services not directly related to such Transactions, subject to the Promissory Note Cap; and (iii) all expenses incurred or owed in relation to the Transactions, including all fees for legal, accounting, audit, printing and other professional services in connection therewith, provided, however that the total of such liabilities, excluding those described in clause (i) above, and assuming a Closing by no later than the Outside Date, shall not exceed an aggregate amount of $1,000,000.
(g) The Purchaser Parties TopCo shall have executed and confirmed the New Employment Agreements with each of the senior employees of the Company who had entered into such agreements.
(h) SPAC shall have delivered to the Company each Additional a certificate, signed by an authorized representative of SPAC and dated as of the Closing Date, certifying as to the matters set forth in Section 7.02(a), Section 7.02(b), Section 7.02(c) and Section 7.02(d).
(i) The Sponsor Share Surrender and additional surrender (if any) of TopCo Shares issued in respect of the SPAC Sponsor Investment shall have been completed.
(j) TopCo and SPAC Sponsor shall have executed, and TopCo shall have delivered to SPAC Sponsor, in replacement of all existing promissory notes issued by SPAC to Sponsor, the A&R Sponsor Promissory Note.
(k) The TopCo Board shall have adopted the New Incentive Plan and created the New Incentive Plan Pool.
(l) SPAC and any other SPAC Party shall have delivered or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder.
(m) the Amended Registration Rights and Lock-Up Agreement to which it is a partyshall have been duly executed by TopCo and the SPAC Sponsor.
Appears in 1 contract
Sources: Business Combination Agreement (Moringa Acquisition Corp)