Alternative Structure. (a) The Company shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact. (b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided, however, that failure of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact. (c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.
Appears in 4 contracts
Sources: Merger Agreement, Merger Agreement, Merger Agreement (At&t Inc.)
Alternative Structure. If following the date of this Agreement all of the conditions set forth in Article VI have been satisfied or waived (aexcept that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) The Company has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)), Parent shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which alter the structure of the business combination between Merger Sub and the Company or any contemplated by this Agreement, , by consummating a second-step merger of its Subsidiaries is the Surviving Corporation into a party to be amended prior to the date limited liability company wholly-owned by Parent that is not later than disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the fifth business day prior to Merger (such second-step merger, the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture ImpactSecond Merger”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided, however, that failure (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the parties to agree to an alternative structure shall not cause any condition to Closing tax representation letters in the forms set forth herein not to in Exhibit B-2 shall be satisfied or otherwise cause executed and delivered, and (iii) any breach of this Agreement; and provided, further, that any actions action taken pursuant to this Section 6.20(b) (A1.1(b) shall not (I) without the consent of unless consented to in writing by the Company and Parent, prior to the Closing) (x) alter or change the amount, nature kind or mix amount of consideration to be issued to the holders of the Merger Consideration Company’s capital stock or other securities as provided for in this Agreement or (IIy) impose otherwise cause any economic or other costs on Parent or closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the Company that are more than immaterial party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and (BSection 6.1(e) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything Merger and the second-step merger described in this Agreement to the contrarySection 1.1(b), in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impacttaken together as one integrated transaction for U.S. federal income tax purposes.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.
Appears in 4 contracts
Sources: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.)
Alternative Structure. (a) The Company shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior Notwithstanding anything to the date that is not later than the fifth business day contrary contained in this Agreement, (A) at any time prior to the date the Form S-4 Registration definitive Proxy Statement is declared effectivefirst mailed to the stockholders of the Company in connection with the Company Stockholders Meeting, if Parent reasonably determines that such amendment is necessary or (B) or otherwise with the prior written consent of the Company (which shall not be unreasonably withheld or delayed), Parent, in its sole discretion, may elect to modify the structure of the Merger so as to provide that the Subsequent Company shall merge with and into Parent (rather than Merger will not have any Sub), with Parent continuing as the surviving corporation of the effects described in Section 5.1(d)(ii) Merger (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture ImpactAlternative Structure”); provided that without Parent’s prior written consent (a) the consideration to be paid to the stockholders of the Company shall is not make any non-de minimis consent payments to any third party thereby changed in connection with the foregoing nature or agree to amend any of the terms kind or reduced in amount as a result of such agreementmodification, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, (c) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or delay the consummation of the transactions contemplated by this Agreement. In the event that either (i) Parent elects to implement the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture ImpactAlternative Structure, the parties agree (x) to cooperate agree, in good faith faith, to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code prepare and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such execute an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure the Alternative Structure and provide for such other changes necessitated thereby; provided, however, that failure any necessary modifications to the terms of the parties Agreement to agree give effect to an alternative structure shall not cause any condition the Alternative Structure (including all necessary or appropriate changes to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent definitions of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax TreatmentMerger, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to ClosingSurviving Corporation and such terms impacted thereby).
Appears in 3 contracts
Sources: Merger Agreement (Spirit Realty Capital, Inc.), Merger Agreement (Realty Income Corp), Merger Agreement (Spirit Realty Capital, Inc.)
Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (aA) The Company shall use if (i) Realty Income uses reasonable best efforts to cause any agreementobtain the Realty Income Credit Agreement Amendment as promptly as practicable after the date hereof, instrument or indenture with respect to indebtedness for borrowed money to which and (ii) Realty Income has not obtained the Company or any of its Subsidiaries is a party to be amended prior to Realty Income Credit Agreement Amendment by the date that is not later than the fifth business day fifteen (15) Business Days prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any earlier of the effects described date of the VEREIT Stockholders Meeting and the Realty Income Stockholders Meeting, or (B) or otherwise with the consent of VEREIT (which shall not be unreasonably withheld or delayed), Realty Income, in Section 5.1(d)(ii) its sole discretion, may elect to modify the structure of the Merger so as to provide that VEREIT shall merge into and Realty Income (mutatis mutandi) rather than Merger Sub 1), with Realty Income continuing as the surviving corporation of the Merger (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture ImpactAlternative Structure”); provided that without Parent’s prior written consent (a) the Company shall consideration to be paid to the stockholders of VEREIT is not make any non-de minimis consent payments to any third party thereby changed in connection with the foregoing nature or agree to amend any of the terms kind or reduced in amount as a result of such agreementmodification, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of Realty Income or VEREIT as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of VEREIT as a REIT for federal income tax purposes for any period, and (c) other than the modification to the Realty Income Required Stockholders Vote to require a majority of the outstanding shares of Realty Income Common Stock as a result of the Alternative Structure, such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or materially delay the consummation of the transactions contemplated by this Agreement. In the event that either (i) Realty Income elects to implement the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture ImpactAlternative Structure, the parties agree (x) to cooperate agree, in good faith faith, to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code prepare and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such execute an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure the Alternative Structure and provide for such other changes necessitated thereby; provided, however, that failure any necessary modifications to the terms of the parties Agreement to agree give effect to an alternative structure shall not cause any condition the Alternative Structure (including all necessary or appropriate changes to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent definitions of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax TreatmentMerger, the parties may agree (in each party’s reasonable business discretion) not to consummate Surviving Corporation, the Subsequent Merger. For Realty Income Required Stockholders Vote and the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to ClosingRealty Income Stock Issuance and such terms impacted thereby).
Appears in 2 contracts
Sources: Merger Agreement (VEREIT Operating Partnership, L.P.), Merger Agreement (Realty Income Corp)
Alternative Structure. (a) The Company shall use reasonable best efforts parties agree that in the event issues arise that could reasonably be expected to cause any agreement, instrument prevent the parties from obtaining the Required Minority Equity Holder Approvals or indenture the Required Regulatory Approvals with respect to indebtedness for borrowed money to which the any Acquired Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Non-Transferred Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) Determination Date with respect to such agreement, instrument or indenture Acquired Company (an “Indenture ImpactAlternative Structure Event”); provided that without Parent’s prior written consent , Purchaser and Sellers, subject, in the Company case of Sellers, to the Minority Equity Holder Rights, and in all cases, to the avoidance of Initial Closing Legal Prohibitions or Subsequent Closing Legal Prohibitions, as applicable, shall not make any non-de minimis consent payments continue to any third party use best efforts, and proceed expeditiously and in connection good faith, to consummate the purchase, sale and other transactions contemplated hereunder with respect to each Acquired Company. Without limiting the generality of the foregoing, in the event of an Alternative Structure Event, the parties shall use best efforts, and proceed expeditiously and in good faith, to restructure the form of the transactions contemplated hereby in order to proceed with the foregoing or agree to amend any substance of the terms transactions contemplated by this Agreement pursuant to such alternative structures and transactions which would have a materially improved chance of such agreementcompletion and which may be accomplished in a manner that preserves the allocation of benefits, instrument or indenture except opportunities, costs, responsibilities, liabilities and net economic benefit of the transactions contemplated hereby to amend Purchaser and Sellers (taking into account the provision giving rise effect of Taxes) and for consideration equal to the Indenture Impactconsideration allocated to the transactions pursuant to Section 2.2 of the Agreement.
(b) In furtherance of the event that either foregoing, an Acquired Company shall be deemed to be a “Section 6.29 Retained Company” upon the earliest to occur of (the “Section 6.29 Retained Company Determination Date”) (i) the Mergers would date upon which Sellers provide written notice to Purchaser that Sellers have determined in good faith that, despite the parties’ compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Section 7.1(b) and (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably be likely to fail be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to qualify for agree upon alternative structures and transactions as contemplated in the Intended Tax Treatment or last sentence of Section 6.29(a), (ii) the Subsequent Merger would have an Indenture Impactdate upon which Sellers and Purchaser mutually agree that, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) despite each party’s compliance with all of the Code covenants and (y) if each party to this Agreement obligations contained in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such alternative structure and provide for such other changes necessitated thereby; providedAcquired Company, however, that failure (A) one or both of the conditions to closing set forth in Section 7.1(b) and (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a) and (iii) the Non-Transferred Company Determination Date, if the Initial Closing or Subsequent Closing, as the case may be, does not occur with respect to an alternative structure shall not cause such Acquired Company because, despite each party’s compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any condition Subsequent Closing, as applicable, related to such Acquired Company, as of such date, (A) one or both of the conditions to Closing set forth herein in Sections 7.1(b) and (c), with respect to an Initial Closing, or Section 7.4(a)(ii) and (iii), with respect to any Subsequent Closing, were not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable the parties were unable to agree upon alternative structures and transactions as contemplated in the last sentence of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture ImpactSection 6.29(a).
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatmentthat any Acquired Company becomes a Section 6.29 Retained Company, (i) the parties may agree (in each party’s reasonable business discretion) not shall nevertheless be obligated to consummate the Initial Closing and any Subsequent Merger. For Closing and the avoidance other transactions contemplated by this Agreement except with respect to any such Section 6.29 Retained Company (or any Retained Company or ROFR Company), (ii) the applicable Seller will retain and continue to hold and own its Seller Equity Interests or Holding Company Equity Interests relating to, and any Sellers Stockholder Debt with regard to, any such Section 6.29 Retained Company, (iii) the Sellers Equity Interests of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.any such
Appears in 2 contracts
Sources: Stock Purchase Agreement (Telefonica S A), Stock Purchase Agreement (Telefonica Mobile Inc)
Alternative Structure. (a) The Company shall use reasonable best efforts Notwithstanding anything to cause any agreementthe contrary contained in this Agreement, instrument or indenture with respect upon notice to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended MART not less than 10 business days prior to the date that is not later than Shareholders' Meeting, Kimco shall be entitled to revise the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any structure of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect Merger so as to provide for (i) the Company Material Adverse Effect exception at merger of Merger Sub into MART (with MART as the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreementSurviving Entity), instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent merger of another directly or indirectly, wholly-owned subsidiary of Kimco, other than Merger would have an Indenture ImpactSub, the parties agree with MART (x) with either of MART or such subsidiary surviving). In addition, MART will take such other action as may be reasonably requested by Kimco to cooperate in good faith to explore alternative structures that would permit help reduce any adverse tax implications arising out of the transactions contemplated hereby hereby, provided, that, nothing in this Section 10.15 shall (a) subject the MART shareholders to qualify as a reorganization within adverse tax consequences, (b) change the meaning amount or form of Section 368(aconsideration to be received by the MART shareholders, (c) alter to the detriment of the Code MART shareholders the benefits to be received by them hereunder, (d) jeopardize or materially delay or impede the receipt of any required regulatory or third Party approvals or consents or add any additional regulatory or third party approvals or consents relating to the consummation of the Merger, (e) impede or delay consummation of the Merger, or create any new condition to Closing, (f) reduce the obligations of any party hereunder including, but not limited to, Kimco's obligations to provide the Merger Consideration and perform its other undertakings hereunder after the Effective Time or (yg) if each party to this Agreement in adversely affect MART or the exercise MART Subsidiaries or otherwise increase the obligations of its reasonable business discretion agrees to pursue such an alternative structure, MART or the MART Subsidiaries. The parties shall enter into execute an appropriate amendment to this Agreement and any related documents necessary to reflect any such alternative structure and provide for such other changes necessitated thereby; provided, however, that failure of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impactrevised structure.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.
Appears in 2 contracts
Sources: Merger Agreement (Mid Atlantic Realty Trust), Merger Agreement (Kimco Realty Corp)
Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, before the Effective Time, Parent may revise the structure of the Merger or otherwise revise the method of effecting the Merger and related transactions, provided, that, other than as a result of actions taken in compliance with the last two sentences of this Section 9.11, (a) The Company shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior to the date that is such revision does not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided, however, that failure of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature kind or mix amount of the Merger Consideration Consideration, (b) such revision does not adversely affect the Tax treatment of the Merger to the shareholders of Company, (c) such revised structure or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be method is reasonably capable of consummation without significant delay in relation to the structure contemplated herein. Notwithstanding anything herein and (d) such revision does not otherwise cause any of the conditions set forth in this Agreement Article VII not to be capable of being fulfilled unless duly waived by the party entitled to the contrary, benefits thereof. The parties expressly agree that in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatmentof an All Cash Event, the parties may agree structure of the Merger shall be revised such that (in each party’s reasonable business discretionx) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above Merger shall be a condition merger of Merger Sub with and into Company, with Company being the surviving corporation in the Merger, continuing its corporate existence under the laws of the State of California, and a wholly owned subsidiary of Buyer, (y) there shall be no Stock Consideration and the term “Merger Consideration” for all purposes of this Agreement shall be deemed to Closingmean exclusively the right to receive (I) $9.12 in cash without interest, subject to adjustment in accordance with Section 1.7(e) (plus Increase Amounts, if any) and (II) one Warrant and (z) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Cancelled Shares or Dissenting Shares) shall, subject to Section 1.7(f), at and as of the Effective Time, be converted into the right to receive the Merger Consideration. This Agreement and any related documents will be, or will deemed to have been, appropriately amended in order to reflect any revised structure or method as contemplated by this Section 9.11.
Appears in 1 contract
Alternative Structure. (a) Parent shall be empowered at any time prior to the Effective Time, to change the method or structure of effecting the combination of the Company and Parent; provided, that no such change shall (i) alter or change the Merger Consideration or the number of shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.2.
(b) Notwithstanding anything to the contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the business day prior to the Closing Date, then the parties agree that (i) the Merger shall be effected by the merger of a newly-formed subsidiary of Parent (“Merger Sub”) with and into the Company and the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), (ii) the Charter Amendment shall become effective and the Company shall file the Charter Amendment with the Department of Assessments and Taxation of the State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, (iii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Table of Contents Consideration pursuant to Section 1.5, (iv) the Company Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the effective time of the Alternative Merger shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”). In the event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B) Parent shall not be required to deposit into the Exchange Fund New Parent Preferred Stock certificates or any cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to cause any agreement, instrument take all corporate action and make all filings reasonably necessary or indenture with respect desirable to indebtedness for borrowed money to which facilitate the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party Alternative Structure. Actions taken in connection with with, and the foregoing or agree to amend any consummation of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structureby, the parties Alternative Structure shall enter into an appropriate amendment to this Agreement to reflect such alternative structure not constitute a breach of any representations and provide for such other changes necessitated thereby; provided, however, that failure warranties of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of in this Agreement; and provided. If the Alternative Structure is effected by the parties, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything then all references in this Agreement to the contrary, “Merger” shall mean the “Alternative Merger”. Parent may elect in no event shall Parent be required its sole discretion to cause issue a guarantee to the Subsequent holders of the Company Preferred Stock that remains outstanding following the Alternative Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatmentpayment of dividends, the parties may agree (in each party’s reasonable business discretion) not to consummate redemption price and the Subsequent Merger. For liquidation value of the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to ClosingCompany Preferred Stock.
Appears in 1 contract
Alternative Structure. (a) The Company shall use reasonable best efforts parties agree that in the event issues arise that could reasonably be expected to cause any agreement, instrument prevent the parties from obtaining the Required Minority Equity Holder Approvals or indenture the Required Regulatory Approvals with respect to indebtedness for borrowed money to which the any Acquired Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Non-Transferred Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) Determination Date with respect to such agreement, instrument or indenture Acquired Company (an “Indenture Impact”"ALTERNATIVE STRUCTURE EVENT"); provided that without Parent’s prior written consent , Purchaser and Sellers, subject, in the Company case of Sellers, to the Minority Equity Holder Rights, and in all cases, to the avoidance of Initial Closing Legal Prohibitions or Subsequent Closing Legal Prohibitions, as applicable, shall not make any non-de minimis consent payments continue to any third party use best efforts, and proceed expeditiously and in connection good faith, to consummate the purchase, sale and other transactions contemplated hereunder with respect to each Acquired Company. Without limiting the generality of the foregoing, in the event of an Alternative Structure Event, the parties shall use best efforts, and proceed expeditiously and in good faith, to restructure the form of the transactions contemplated hereby in order to proceed with the foregoing or agree to amend any substance of the terms transactions contemplated by this Agreement pursuant to such alternative structures and transactions which would have a materially improved chance of such agreementcompletion and which may be accomplished in a manner that preserves the allocation of benefits, instrument or indenture except opportunities, costs, responsibilities, liabilities and net economic benefit of the transactions contemplated hereby to amend Purchaser and Sellers (taking into account the provision giving rise effect of Taxes) and for consideration equal to the Indenture Impactconsideration allocated to the transactions pursuant to SECTION 2.2 of the Agreement.
(b) In furtherance of the event that either foregoing, an Acquired Company shall be deemed to be a "SECTION 6.29 RETAINED COMPANY" upon the earliest to occur of (the "SECTION 6.29 RETAINED COMPANY DETERMINATION DATE") (i) the Mergers would date upon which Sellers provide written notice to Purchaser that Sellers have determined in good faith that, despite the parties' compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in SECTION 7.1(b) and (c) (in the case of the Initial Closing) or SECTION 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably be likely to fail be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to qualify for agree upon alternative structures and transactions as contemplated in the Intended Tax Treatment or last sentence of SECTION 6.29(a), (ii) the Subsequent Merger would have an Indenture Impactdate upon which Sellers and Purchaser mutually agree that, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) despite each party's compliance with all of the Code covenants and (y) if each party to this Agreement obligations contained in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such alternative structure and provide for such other changes necessitated thereby; providedAcquired Company, however, that failure (A) one or both of the conditions to closing set forth in SECTION 7.1(b) and (c) (in the case of the Initial Closing) or SECTION 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of SECTION 6.29(a) and (iii) the Non-Transferred Company Determination Date, if the Initial Closing or Subsequent Closing, as the case may be, does not occur with respect to an alternative structure shall not cause such Acquired Company because, despite each party's compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any condition Subsequent Closing, as applicable, related to such Acquired Company, as of such date, (A) one or both of the conditions to Closing set forth herein in SECTIONS 7.1(b) and (c), with respect to an Initial Closing, or SECTION 7.4(a)(ii) and (iii), with respect to any Subsequent Closing, were not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable the parties were unable to agree upon alternative structures and transactions as contemplated in the last sentence of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture ImpactSECTION 6.29(a).
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatmentthat any Acquired Company becomes a Section 6.29 Retained Company, (i) the parties may agree (in each party’s reasonable business discretion) not shall nevertheless be obligated to consummate the Initial Closing and any Subsequent Merger. For Closing and the avoidance other transactions contemplated by this Agreement except with respect to any such Section 6.29 Retained Company (or any Retained Company or ROFR Company), (ii) the applicable Seller will retain and continue to hold and own its Seller Equity Interests or Holding Company Equity Interests relating to, and any Sellers Stockholder Debt with regard to, any such Section 6.29 Retained Company, (iii) the Sellers Equity Interests of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.any such
Appears in 1 contract
Alternative Structure. (a) Parent shall be empowered at any time prior to the Effective Time, to change the method or structure of effecting the combination of the Company and Parent; provided, that no such change shall (i) alter or change the Merger Consideration or the number of shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.2.
(b) Notwithstanding anything to the contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the business day prior to the Closing Date, then the parties agree that (i) the Merger shall be effected by the merger of a newly-formed subsidiary of Parent (“Merger Sub”) with and into the Company and the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), (ii) the Charter Amendment shall become effective and the Company shall file the Charter Amendment with the Department of Assessments and Taxation of the State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, (iii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Consideration pursuant to Section 1.5, (iv) the Company Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the effective time of the Alternative Merger shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”). In the event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B) Parent shall not be required to deposit into the Exchange Fund New Parent Preferred Stock certificates or any cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to cause any agreement, instrument take all corporate action and make all filings reasonably necessary or indenture with respect desirable to indebtedness for borrowed money to which facilitate the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party Alternative Structure. Actions taken in connection with with, and the foregoing or agree to amend any consummation of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structureby, the parties Alternative Structure shall enter into an appropriate amendment to this Agreement to reflect such alternative structure not constitute a breach of any representations and provide for such other changes necessitated thereby; provided, however, that failure warranties of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of in this Agreement; and provided. If the Alternative Structure is effected by the parties, further, that any actions taken pursuant to this Section 6.20(b) (A) shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything then all references in this Agreement to the contrary, “Merger” shall mean the “Alternative Merger”. Parent may elect in no event shall Parent be required its sole discretion to cause issue a guarantee to the Subsequent holders of the Company Preferred Stock that remains outstanding following the Alternative Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatmentpayment of dividends, the parties may agree (in each party’s reasonable business discretion) not to consummate redemption price and the Subsequent Merger. For liquidation value of the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to ClosingCompany Preferred Stock.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Mb Financial Inc /Md)
Alternative Structure. (a) The Company shall use reasonable best efforts to cause any agreementIn the event that, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior to the date Closing, VSI reaches agreement with Netcall Technologies Ltd. ("Netcall") terminating that is not later than certain Software Distribution Agreement dated July 4, 1996 between Netcall and VSI (the fifth business day prior "Netcall Agreement") or modifying Section 6.7 of the Netcall Agreement to permit VSI to market software competitive with the Software (as defined in the Netcall Agreement), then in lieu of the formation of the Company and the Capital Contributions and share issuances contemplated in Sections 1.1, 1.2 and 1.3 above, Atio (PTY) shall make to VSI the capital contributions contemplated to be made by Atio (PTY) to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any of the effects described Company in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(iiSubparagraphs 1.2(a)(i) and (ii) any cure period or notice requirementabove and VSI shall, in consideration thereof, issue to Atio International 2,000,000 common shares of the capital stock of VSI (which shares, when so issued, shall be duly and validly issued, fully paid and nonassessable). In such event, VSI shall be a party to the Shareholders Agreement (as defined in Article VI below) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent and the License Agreement in lieu of the Company shall not make any non-de minimis consent payments to any third party and the other references in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In the event that either (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided"the Company" shall be deemed to refer to VSI to the extent consistent with the provisions of this Section 1.4. The parties acknowledge, however, that failure of Atio (PTY) would not make to VSI the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not capital contributions contemplated to be satisfied or otherwise cause any breach of this Agreement; made by it herein, and provided, further, that any actions taken pursuant to this Section 6.20(b) (A) shall Atio International would not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay accept shares in relation to the structure VSI as contemplated herein, if VSI continued to owe to Venturian the amounts evidenced by the Venturian Note. Notwithstanding anything in this Agreement to the contraryAccordingly, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect any alternative structure if the foregoing would result in an Indenture Impact.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above it shall be a condition to the obligation of Atio (PTY) to contribute to VSI the amounts contemplated in this Section 1.4 that, prior thereto, Venturian make, as a Capital Contribution to VSI but in exchange for no additional shares of the capital stock or securities of VSI, Venturian's right to receive all amounts owing by VSI to Venturian as evidenced by the Venturian Note, other than any amounts advanced by Venturian to VSI after August 31, 1997 (the "Post-August Advances"). Promptly following the Closing., VSI shall repay to Venturian the Post-August Advances. If the transactions contemplated herein are consummated under the Alternative Structure set forth in this Section 1.4, the parties shall, promptly following the Closing, change the name of VSI to Atio Corporation in USA, Inc.
Appears in 1 contract
Alternative Structure. Notwithstanding anything to the contrary contained in this Plan, subject to the final sentence of this Section (M), MSBC may, at its sole option, elect to either (a) The Company form a separate subsidiary corporation and merge it into Ballston or Ballston into it such that MSBC shall use reasonable best efforts to cause any agreement, instrument or indenture with respect to indebtedness for borrowed money to which be the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the Form S-4 Registration Statement is declared effective, if Parent reasonably determines that such amendment is necessary so that the Subsequent Merger will not have any sole shareholder of the effects described in Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to (i) the Company Material Adverse Effect exception at the end of Section 5.1(d)(ii) and (ii) any cure period surviving corporation, or notice requirement) with respect to such agreement, instrument or indenture (an “Indenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the foregoing or agree to amend any of the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact.
(b) In convert this Plan to an exchange of Ballston Common Stock for MSBC Common Stock, instead of a merger, on the event that either same terms and conditions contained herein (i) the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment or (ii) the Subsequent Merger would have an Indenture Impact, the parties agree (x) to cooperate in good faith to explore alternative structures that would permit the transactions contemplated hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide except for such other changes necessitated therebyconversion); provided, however, that MSBC may not make such an election if it would result in failure to satisfy the condition set forth in either Section (M) or (P) of Article VI. In the event MSBC makes an election pursuant to the prior sentence, Ballston shall take all actions reasonably requested by MSBC (including without limitation using its best efforts to obtain any requisite corporate and stockholder approvals in connection therewith). In the event that MSBC makes an election pursuant to the first sentence of this Section (M), the parties hereto agree promptly to agree amend this Plan as MSBC may reasonably deem necessary or appropriate. If MSBC reasonably determines that the Merger cannot be effected pursuant to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, further, that any actions taken Plan (other than pursuant to this Section 6.20(b(M)) and MSBC also reasonably determines that the transactions contemplated by this Plan can be effected if one or more of the actions contemplated by this Section (AM) are taken, then MSBC shall elect to take one or more of the actions contemplated by this Section (M); provided, however, that MSBC shall not (I) without the consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any economic or other costs on Parent or the Company that are more than immaterial and (B) shall be capable of consummation without delay in relation to the structure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the Subsequent Merger to occur or to effect take any alternative structure such action if the foregoing would taking of such action is, in MSBC's reasonable judgment, reasonably likely to result in an Indenture Impactthe failure of any of the conditions set forth in Article VI.
(c) In the event the Mergers would reasonably be likely to fail to qualify for the Intended Tax Treatment, the parties may agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to Closing.
Appears in 1 contract