Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salesforce Com Inc)
Authority and Enforceability. The (a) Subject to obtaining the Company Stockholder Approval, the Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company (including and, assuming the unanimous approval due execution and delivery of this Agreement by the Board of Directors of other parties hereto, constitutes the Company) valid and no further corporate or other action is required on the part binding obligation of the Company enforceable against the Company in accordance with its terms subject only to authorize the effect, if any, of (i) applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or affecting the enforcement of the rights and remedies of creditors generally and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. The Company Board, by resolutions duly adopted (and not thereafter modified or rescinded) by the unanimous vote of the Company Board, has (i) declared that this Agreement and any Related Agreements the Transactions, including the Merger, upon the terms and subject to which the conditions set forth herein, are advisable, fair to and in the best interests of the Company is a party or to consummate and the Merger or any other transactions contemplated hereby Company Stockholders, (ii) approved this Agreement in accordance with the provisions of Delaware Law and thereby, other than (iii) directed that the adoption of this Agreement and approval of the Merger by be submitted to the Company Stockholders for consideration and recommended that all of the Company who hold (a) Stockholders adopt this Agreement and approve the Merger. Other than obtaining the affirmative votes of at least a majority the number of the voting power of the outstanding shares of Company Capital StockStock which constitute the Company Stockholder Approval, voting together as a single class no other votes, approvals or consents on an as converted into Company Common Stock basis, (b) a majority the part of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority and/or any of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required Security Holders are necessary under applicable Legal Requirements, Delaware Law, any of the Charter Documents and all or any Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and the Transactions and to approve the Merger Merger.
(b) The execution and delivery of this Agreement by the Company does not, and the other transactions contemplated hereby. The Board consummation of Directors the Transactions will not, (i) result in the creation of any Encumbrance on any of the material assets of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval or any Subsidiary or any of the Merger and the other transactions contemplated hereby shares of Company Capital Stock or (the “Company Recommendation”ii) conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both). This Agreement and each , or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any benefit under, (A) any provision of the Related Agreements Charter Documents or the organizational documents of any Subsidiary, in each case as amended to date, (B) assuming the making of all filings as may be required under the HSR Act the expiration or termination of the applicable waiting period, any Law or any judgement, order or decree to which the Company or any Subsidiary is a party have been duly executed and delivered by subject, or (C) except as set forth on Schedule 3.2(b)(ii)(C) of the Company and assuming Disclosure Letter, any Material Contract.
(c) No consent, approval, Order or authorization of, or registration, declaration or filing with, or notice to, any Governmental Entity is required by or with respect to the due authorization, Company in connection with the execution and delivery by of this Agreement or the consummation of the Transactions, except for (i) the filing of the Certificate of Merger, (ii) such filings and notifications as may be required under the HSR Act and the expiration or early termination of applicable waiting periods under the HSR Act and (iii) such other parties hereto consents, approvals, Orders, authorizations, registrations, declarations, filings and theretonotices that, constitute if not obtained or made, would not adversely affect, and would not reasonably be expected to adversely affect, the valid and binding Company’s ability to perform or comply with the covenants, agreements or obligations of the Company enforceable against it herein or to consummate the Transactions in accordance with their respective termsthis Agreement and applicable Law.
(d) The Company, the Company Board and, subject to (x) Legal Requirements receipt of general application relating to bankruptcy, insolvency, moratoriumthe Company Stockholder Approval, the relief Company Stockholders have taken all actions such that the restrictive provisions of debtors and enforcement of creditors’ rights in generalany “fair price,” “moratorium,” “control share acquisition,” “business combination,” “interested shareholder” or other similar anti-takeover statute or regulation, and (y) rules any anti-takeover provision in the organizational or governing documents of law governing specific performancethe Company will not be applicable to any of Parent, injunctive reliefthe Company, the Surviving Corporation or to the execution, delivery or performance of the Transactions, including the consummation of the Merger or any of the other equitable remedies and other general principles of equityTransactions.
Appears in 2 contracts
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, and (b) a majority at least sixty-six and two thirds (66 2/3%) of the voting power of the outstanding shares of Company Series B Preferred Stock, voting together as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate single class (clauses (a) through and (db), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions. No other transactions contemplated hereby “control share acquisition,” “fair price,” “moratorium” or other antitakeover Legal Requirement (such Law, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp), Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp)
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and any Related Agreements to which it is a party andconsummate the transactions contemplated hereby, subject to receipt of the Requisite Company Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which by the Company is a party and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company, subject to the Company (including Stockholder Approval. This Agreement has been duly executed and delivered by the unanimous approval of Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes the Board of Directors valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) and no further corporate bankruptcy, insolvency, reorganization, moratorium or other action is required on similar Laws affecting or relating to creditors’ rights generally, and (ii) the part availability of the Company to authorize this Agreement injunctive relief and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, equitable remedies.
(b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders stockholder votes required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. hereby are the affirmative vote of the holders of (i) a majority of the then outstanding Company Shares voting as a single class, (ii) sixty-six and two-thirds percent (66 2/3%) of the then outstanding shares of Preferred Stock, (iii) a majority of the then outstanding shares of Class A Common Stock and (iv) a majority of the then outstanding shares of Class B Common Stock, on the record date of a duly convened meeting of the Company Stockholders, or by written consent in lieu of such meeting (the “Company Stockholder Approval”).
(c) The Board of Directors of the Company has unanimously has, by the unanimous vote of all directors in office, (i) duly approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of the Company Stockholders and (iii) recommended to that the Company Stockholders to vote in favor of adoption of adopt this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This directed that this Agreement and each of the Related Agreements be submitted to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityStockholders for adoption.
Appears in 2 contracts
Sources: Merger Agreement (Valeant Pharmaceuticals International), Merger Agreement (Valeant Pharmaceuticals International)
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject to receipt in the case of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger to obtaining the Company Stockholder Approval, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the other consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to obtaining the Stockholders Company Stockholder Approval. The affirmative vote of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Common Stock at a separate class, (c) a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and Company’s stockholders to adopt this Agreement (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Company Stockholder Approval”). The Requisite Stockholder Approval ) is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company holders of any class of capital stock or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors security of the Company has unanimously approved this Agreement, necessary in connection with the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval consummation of the Merger and the other transactions contemplated hereby (the “Company Recommendation”)by this Agreement. This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorizationexecution of this Agreement by Parent and Merger Sub, execution and delivery by the other parties hereto and thereto, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to (x) Legal Requirements of general application relating to except as such enforceability may be limited by bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar laws affecting or relating to creditors’ rights in generalgenerally, and (y) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) At a meeting duly called and other general principles held, prior to the execution of equitythis Agreement, at which all directors of the Company were present, the Board of Directors of the Company, by resolutions duly adopted, unanimously (i) adopted this Agreement and declared it advisable, (ii) recommended that the Company Stockholders vote in favor of the adoption of this Agreement and (iii) directed that the Company submit the adoption of this Agreement to a vote at the Company Stockholder Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Lone Star Technologies Inc), Merger Agreement (United States Steel Corp)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board board of Directors directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebythereby in accordance with the terms hereof, other than the adoption of this Agreement and approval of the Merger by Company Shareholders representing the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, Requisite Shareholder Approval.
(b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Shareholder Approval is the only vote of the Stockholders Company Shareholders required under applicable Legal Requirements, Delaware Law, the Charter BVI Act, the Governing Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks Inc)
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject to receipt in the case of the Requisite consummation of the Merger to the Company Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the consummation by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to the Stockholders Company Stockholder Approval. The affirmative vote of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Common Stock at a separate class, (c) a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval Stockholders to adopt this Agreement is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which holders of any class of capital stock or other security of the Company or any Subsidiary is a party necessary to legally adopt approve this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company RecommendationStockholder Approval”). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Parent and theretoMerger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Board of Directors of the Company has, by the unanimous vote of all directors then in office, (i) approved this Agreement and other general principles the transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of equitythe Company Stockholders and (iii) resolved to recommend that the Company Stockholders adopt this Agreement and directed that this Agreement be submitted to the Company Stockholders for adoption.
Appears in 1 contract
Sources: Merger Agreement (Cytogen Corp)
Authority and Enforceability. (a) The Company has all requisite the corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject only to receipt of the Requisite Company Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution execution, delivery and delivery performance by the Company of this Agreement and any Related Agreements each Ancillary Document to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and . Except for the Company Stockholder Approval, no further other corporate or other action is required proceedings on the part of the Company are necessary to authorize the execution, delivery or performance of this Agreement and or any Related Agreements Ancillary Document to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and or thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements Ancillary Document to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by Parent Guarantor, Buyer, Merger Sub, the Stockholder Representative and any other parties hereto and party thereto, constitute the as applicable, constitutes a legal, valid and binding obligations agreement of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject except to (x) Legal Requirements of general application the extent that enforcement may be affected by Laws relating to bankruptcy, insolvencyreorganization, moratorium, the relief of debtors insolvency and enforcement of creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies.
(b) The Board of Directors of the Company, by unanimous written consent dated July 27, 2023, (i) determined that this Agreement and the Merger are fair to and in generalthe best interests of the Company and its stockholders, (ii) approved the Merger upon the terms and subject to the conditions set forth herein and approved the execution by the Company of this Agreement, and (yiii) rules of law governing specific performance, injunctive relief, other equitable remedies resolved to recommend that the Company’s stockholders approve and other general principles of equityadopt this Agreement and the Merger.
Appears in 1 contract
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the First Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger Mergers and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany and the unanimous approval of the Shareholders in the Shareholder Written Consents) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger Mergers or any other transactions contemplated hereby and thereby, other than Transactions. The Shareholder Written Consents from each of the adoption Shareholders delivered to Parent prior to the execution of this Agreement and approval of the Merger by the Stockholders of the Company who hold (apursuant to Section 5.2(a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders Shareholders required under applicable Legal Requirements, Delaware Lawthe California Code, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Mergers and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger Mergers and the other transactions contemplated herebyTransactions, and recommended to the Stockholders Shareholders to vote in favor of adoption of this Agreement and approval of the Merger Mergers and the other transactions contemplated hereby Transactions (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute or will, when executed, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite full corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements each of the Transaction Documents to which it is or will be a party, and to perform its obligations hereunder and thereunder and to consummate the Transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the Transaction Documents to which it is a party andparty, subject to receipt have been, or will be when executed and delivered on the Closing Date, duly authorized by all necessary corporate action by the Company and no other corporate proceedings on the part of the Requisite Company (other than the Stockholder Approval) will be necessary to authorize the execution, delivery and performance of this Agreement or to consummate the Merger Mergers and the other transactions contemplated hereby and thereby. The execution and delivery of this This Agreement and any Related Agreements the Transaction Documents to which the Company is a party have been, or will be when executed and delivered on the consummation of Closing Date, duly executed and delivered by the Merger Company and, assuming the due execution and delivery by the other transactions contemplated hereby parties thereto, constitute (or will constitute) a valid and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors legally binding obligation of the Company) and no further corporate or other action is required on the part of , enforceable against the Company to authorize this Agreement in accordance with the terms hereof, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting creditors’ rights generally and any Related Agreements to which by general equitable principles (whether considered in a proceeding at law or in equity) (the Company is a party “General Enforceability Exceptions”).
(b) The affirmative vote or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption affirmative action by written consent of this Agreement and approval holders of the Merger by the Stockholders of the Company who hold (ai) at least a majority of the voting power of the outstanding all shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basisclass, (bii) at least a majority of the outstanding shares holders of Company Series B Preferred Stock, Stock (voting together as a single class and not as separate classseries, on an as-converted basis) and (ciii) at least a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority holders of the outstanding shares of Company Series D Preferred Stock, voting as a separate class Stock (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is , are the only vote votes, approvals, consents or other actions of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or the holders of any Subsidiary is a party class or series of capital stock of the Company (including any class or series of Company Preferred Stock or Company Common Stock) necessary to legally authorize, approve and adopt this Agreement Agreement, the Mergers and approve the Merger other transactions contemplated hereby and to consummate the Mergers and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 1 contract
Sources: Merger Agreement (AtriCure, Inc.)
Authority and Enforceability. (a) The Company has all requisite full corporate power and authority to enter into execute this Agreement and any Related Agreements the other Transaction Documents to which it is (or will be) a party and to perform its obligations hereunder and thereunder and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions in the Written Consent, to consummate the Merger and the other Transactions.
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party other Transaction Documents have been (or will be) duly executed and delivered by the Company and and, assuming the due authorization, execution execution, and delivery by each of the other parties hereto and theretothereunder, constitute the represent valid and binding obligations of the Company Company, enforceable against it the Company in accordance with their respective terms, except, in each case, to the extent such enforceability is subject to (x) Legal Requirements the effect of general application relating to any applicable bankruptcy, insolvency, reorganization, moratorium, the relief of debtors and enforcement of or other Applicable Law affecting or relating to creditors’ rights in general, generally and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
(c) The Board has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to, and in the best interests of, the Company and the Stockholders, (ii) approved and declared advisable the execution, delivery, and performance of this Agreement and the consummation of the Transactions, including the Merger and (iii) resolved to recommend that the Stockholders adopt this Agreement and approve the Merger and the other Transactions. The only affirmative votes or written consents of the holders of any classes or series of Company Capital Stock necessary to adopt this Agreement and approve the Merger and the other Transactions (“Stockholder Approval”) are the votes of the Consenting Stockholders. All actions relating to the solicitation and obtainment of the Written Consent with respect to this Agreement have been and will be taken in compliance with Applicable Law.
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger Transactions by the Stockholders of the Company who hold (ai) at least a majority of the voting power of the outstanding shares of Company Capital Common Stock and Preferred Stock, voting together as a single class on an as as-converted into to Company Common Stock basis, basis and (bii) a majority of the outstanding shares of Company Series B Preferred Stock, Stock voting together as a separate class, single class on an as-converted to Company Common Stock basis (cthe foregoing clauses (i) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (dii) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that any restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions and no “control share acquisition,” “fair price,” “moratorium” or other transactions contemplated hereby antitakeover Legal Requirement (such Law, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
(d) The Company and the Company Board have taken all actions necessary to effect the transactions anticipated by Section 1.6(b)(iv) under the Plan, all Company Options, and any other plan or arrangement of the Company (whether written or oral, formal or informal) governing the terms of any Company Options, including (i) the determination by the administrators of the Plan that the treatment of Company Options contemplated by Section 1.6(b)(iv) is permissible under the terms of the Plan and the applicable equity award agreements, and (ii) the delivery of all required notices and the procurement of all necessary approvals and consents from third parties necessary to effectuate the foregoing.
(e) The Company has complied with the provisions of, and no breach, violation or default exists under, any Contract to which the Company is a party that provides for any right of first refusal or similar rights with respect to an acquisition of the Company.
Appears in 1 contract
Sources: Merger Agreement (KnowBe4, Inc.)
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject to receipt in the case of the Requisite Stockholder consummation of the Merger to the Company Shareholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the consummation by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to the Stockholders Company Shareholder Approval. The affirmative vote of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Common Stock at a separate class, (c) a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval Shareholders to approve this Agreement is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which holders of any class of capital stock or other security of the Company or any Subsidiary is a party necessary to legally adopt approve this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “"Company Recommendation”Shareholder Approval"). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Parent and theretoMerger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ ' rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Board of Directors of the Company has, by the unanimous vote of all directors then in office, (i) approved this Agreement and other general principles the transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of equitythe Company Shareholders and (iii) resolved to recommend that the Company Shareholders adopt this Agreement and directed that this Agreement be submitted to the Company Shareholders for adoption.
Appears in 1 contract
Sources: Merger Agreement (Aptimus Inc)
Authority and Enforceability. (a) The board of directors of the Company has determined as of the date hereof that the Arrangement is fair to the Company Securityholders and is in the best interests of the Company, and has determined to recommend that the Company Securityholders vote in favour of the Arrangement Resolution. The Company's directors have advised the Company that, as of the date hereof, they intend to vote any Shares and any Company Options held by them on the date of the Company Meeting in favour of the Arrangement Resolution and will so represent in the Circular. The board of directors of the Company has approved the execution and performance of this Agreement and received a draft of the Fairness Opinion from the Financial Advisor and an oral report from the Financial Advisor concerning the Fairness Opinion. Prior to the date of the application for the Interim Order, the board of directors of the Company will have received the Fairness Opinion from the Financial Advisor.
(b) The only vote of holders of securities of the Company necessary to approve the Arrangement is, subject to any requirements of the Interim Order, the Required Vote.
(c) The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt each of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Ancillary Agreements to which the Company is a party and to perform the Company's obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and assuming constitutes the due authorizationlegal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. Upon the execution and delivery by the other parties hereto and thereto, constitute Company of (i) the valid and binding obligations of Ancillary Agreements to which the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, is a party and (yii) rules of law governing specific performancethe Key Employment Agreements, injunctive relief, other equitable remedies and other general principles of equity.such Ancillary
Appears in 1 contract
Sources: Arrangement Agreement (Radisys Corp)
Authority and Enforceability. (a) The Company has all the requisite power and authority to enter into this Agreement and any Related each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement, each of the Ancillary Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery Certificate of this Agreement and any Related Agreements to which the Company is a party Amendment and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required necessary on the part of the Company to authorize this Agreement, any Ancillary Agreement and any Related Agreements to which the Company it is a party or the Certificate of Amendment or to consummate the Merger or any other transactions contemplated hereby and thereby, other than subject to the adoption of this Agreement and approval receipt of the Merger by the Stockholders of the Required Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”)Vote. This Agreement and each of the Related Ancillary Agreements to which the Company it is a party have been duly executed and delivered by the Company and assuming the Company. Assuming due authorization, execution and delivery by the other parties hereto Parent, this Agreement and thereto, constitute each of the Ancillary Agreements constitutes the valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject to except as limited by (xa) Legal Requirements of general application relating to bankruptcy, insolvency, reorganization, moratorium, the relief of debtors and enforcement of fraudulent conveyance or other similar Laws relating to creditors’ rights in general, generally and (yb) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law.
(b) The board of directors of the Company has determined by unanimous approval of all directors that (i) the Merger is fair, from a financial point of view, to the Stockholders and is in the best interests of the Company, and (ii) to unanimously recommend that the Stockholders vote in favor of the Merger, this Agreement and the Certificate of Amendment.
(c) The Merger and this Agreement require the affirmative vote of (i) a majority of Common Stock and Preferred Stock voting together as a single class, (ii) sixty percent (60%) of the Preferred Stock, voting together as a single class on an as-converted basis and (iii) a majority of the Common Stock (the “Required Merger Vote”). No other vote of any holders of common stock, options, warrants, bonds, debentures, notes, other indebtedness or other securities of the Company is required under Law, the Company’s Organizational Documents or otherwise in order to consummate the Merger.
(d) The Certificate of Amendment requires the affirmative vote of of (i) a majority of Common Stock and Preferred Stock voting together as a single class, and (ii) sixty percent (60%) of the Preferred Stock, voting together as a single class on an as-converted basis (the “Required Certificate of Amendment Vote”, and together with the Required Merger Vote, the “Required Company Stockholder Vote”). No further vote, approval or consent of the holders of any class or series of Company Capital Stock is necessary to approve and file with the Secretary of State of the State of Delaware the Certificate of Amendment.
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger Mergers by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, and (b) a majority at least sixty-six and two thirds (66 2/3%) of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority power of the outstanding shares of Company Series C Preferred Stock, voting together as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate single class (clauses (a) through and (db), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions. No other transactions contemplated hereby “control share acquisition,” “fair price,” “moratorium” or other antitakeover Legal Requirement (such Law, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”). During the six month period preceding the date of this Agreement, neither the Company nor any of the Subsidiaries has terminated, amended or waived any rights under (or failed to enforce by seeking an injunction or by seeking to specifically enforce the terms of) any “standstill” agreement between the Company or any of the Subsidiaries and any other Person.
(d) The Company and the Company Board have taken all actions necessary to effect the transactions anticipated by Section 1.6(c) under all Plans, Company Options, and any other plan or arrangement of the Company (whether written or oral, formal or informal) governing the terms of any Company Options, including (i) the determination by the administrators of the Plans that the treatment of Company Options contemplated by Section 1.6(c) is permissible under the terms of the Plans and the applicable equity award agreements, and (ii) the delivery of all required notices and the procurement of all necessary approvals and consents from third parties necessary to effectuate the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (FireEye, Inc.)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the outstanding shares of Company Series A Preferred Stock, voting power together as a single class on an as converted into Company Common Stock basis, and (b) at least a majority of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into to Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class basis (clauses (a) through (db), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote or approval of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general.
(c) No “fair price,” “moratorium,” “interested stockholder,” “control share acquisition,” “business combination” or any other anti-takeover Law or similar Law enacted under state or federal Law (including Section 203 of Delaware Law) or any anti-takeover provision in the Charter Documents is applicable to the Company, and (y) rules any shares of law governing specific performanceCompany Capital Stock or other Company Securities, injunctive reliefthis Agreement, or the Merger or the other equitable remedies and other general principles of equitytransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Pluralsight, Inc.)
Authority and Enforceability. The Company has all requisite full corporate power and authority to enter into execute, deliver and perform its obligations under this Agreement and any Related Agreements each of the other Transaction Documents to which it is a party andparty, subject only to receipt of the obtaining Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyApproval (as defined below). The execution execution, delivery and delivery performance by the Company of this Agreement and any Related Agreements to which the completion by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly duly, validly and unanimously authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) Company and no further corporate or other action the Board of Directors has unanimously resolved that the Merger is required on advisable and in the part best interests of the Company and its stockholders. Neither Section 203 of the DGCL nor any other anti-takeover or similar statute or regulation applies or purports to authorize apply to the Transactions. The only Stockholder approvals or authorizations required to approve this Agreement and any Related Agreements to which the Company is a party or to consummate effect the Merger or any and the other transactions contemplated hereby and thereby, other than Transactions are the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least the holders of a majority of the voting power Company Common Stock and the holders of a majority of the outstanding shares of Company Capital StockPreferred Shares, voting together as a single class class, on an as as-converted into Company Common Stock basis, basis and (b) the holders of a majority of the outstanding shares of Company Series B Preferred StockShares, voting together as a separate single class, on an as-converted basis, as required by the Company Charter and the DGCL (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement has been, and each of the Related Agreements other Transaction Documents to which the Company is a party at the Closing will have been been, duly executed and delivered by the Company Company, and assuming the due authorizationthis Agreement is, execution and delivery by each of the other parties hereto and theretoTransaction Documents to which the Company is a party will be at the Closing, constitute the a legal, valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject except as to the effect, if any, of (xa) Legal Requirements applicable bankruptcy and other similar laws affecting the rights of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, creditors generally and (yb) rules of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equity(collectively, the “Enforceability Exceptions”).
Appears in 1 contract
Sources: Merger Agreement (Drugstore Com Inc)
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt each of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Ancillary Agreements to which the Company is a party and to perform the consummation Company’s obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of the Merger this Agreement and the other transactions contemplated hereby and thereby Ancillary Agreements have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous subject only to approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders holders of the Company who hold (a) at least a majority of the voting power of votes represented by the outstanding shares of Company Capital Stock, voting together as a single class Shares entitled to vote on an as converted into Company Common Stock basis, (b) a majority of this Agreement and the outstanding shares of Company Series B Preferred StockMerger, voting as a separate single class, (c) in each case at a majority meeting duly noticed and held, or by written consent, in compliance with all applicable requirements of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority Laws of the outstanding shares of Company Series D Preferred Stock, voting as a separate class British Virgin Islands (clauses (a) through (d), collectivelythe approval referenced in the foregoing sentence, the “Requisite Stockholder Shareholder Approval”). The Requisite Stockholder Approval is Without limiting the only vote foregoing, the board of directors of the Stockholders required under applicable Legal RequirementsCompany, Delaware Lawat a meeting thereof duly called and held, has duly adopted resolutions by the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved requisite majority vote approving this Agreement, the Merger and the other transactions contemplated herebyby this Agreement, determining that the terms and recommended to the Stockholders to vote in favor of adoption conditions of this Agreement and approval of Agreement, the Merger and the other transactions contemplated hereby (by this Agreement are fair to, and in the “best interests of, the Company Recommendation”)and its shareholders and recommending that the Company’s shareholders adopt and approve this Agreement. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the Related other parties to the Agreement, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to (a) laws of general application relating to bankruptcy, insolvency, and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. Upon the execution and delivery by the Company of the Ancillary Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by each of the other parties hereto and theretoto each Ancillary Agreement, such Ancillary Agreements will constitute the legal, valid and binding obligations of the Company Company, enforceable against it the Company in accordance with their respective terms, subject to (xa) Legal Requirements laws of general application relating to bankruptcy, insolvency, moratorium, and the relief of debtors and enforcement of creditors’ rights in generaldebtors, and (yb) rules of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equityremedies.
Appears in 1 contract
Authority and Enforceability. The (a) Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party the Operative Agreements, and, subject to receipt in the case of the Requisite consummation of the Merger to Company Stockholder Approval, to perform its obligations hereunder and thereunder and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery by Company of this Agreement and any Related the Operative Agreements to which the Company is a party and the consummation by Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of Company, subject in the Company (including the unanimous approval case of the Board of Directors consummation of the Company) and no further corporate or other action is Merger to Company Stockholder Approval. The only stockholder approval required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than for the adoption of this Agreement and approval is the delivery to Company of written consents in favor of adoption of this Agreement from the Merger by the Stockholders holders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Common Stock (the “Company Recommendation”"COMPANY STOCKHOLDER APPROVAL"). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and, assuming Company Stockholder Approval and assuming the due authorization, execution and delivery by the other parties hereto Parent and theretoMerger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ ' rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Board of Directors of Company has, by the unanimous vote of all directors then in office, (i) approved this Agreement and other general principles the transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of equityCompany Stockholders and (iii) resolved to recommend that Company Stockholders adopt this Agreement and directed that this Agreement be submitted to Company Stockholders for adoption. Such resolutions have not been rescinded and are in full force and effect.
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger Transactions by the Stockholders of the Company who hold (ai) at least a majority of the voting power of the outstanding shares of Company Capital Common Stock and Company Preferred Stock, voting together as a single class on an as as-converted into to Company Common Stock basis, and (bii) a majority of the outstanding shares of Company Series B Preferred Stock, voting together as a separate class, single class on an as-converted to Company Common Stock basis (cthe foregoing clauses (i) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (dii) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that any restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions and no “control share acquisition,” “fair price,” “moratorium” or other transactions contemplated hereby antitakeover Legal Requirement (such Legal Requirement, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
(d) The Company and the Company Board have taken all actions necessary to effect the transactions anticipated by Section 1.6(b)(iv) under the Plan, all Company Options, and any other plan or arrangement of the Company (whether written or oral, formal or informal) governing the terms of any Company Options, including (i) the determination by the administrators of the Plan that the treatment of Company Options contemplated by Section 1.6(b)(iv) is permissible under the terms of the Plan and the applicable equity award agreements, and (ii) the delivery of all required notices and the procurement of all necessary approvals and consents from third parties necessary to effectuate the foregoing.
(e) The Company has complied with the provisions of, and no breach, violation or default exists under, any Contract to which the Company is a party that provides for any notice or negotiation rights with respect to an acquisition of the Company.
Appears in 1 contract
Sources: Merger Agreement (FireEye, Inc.)
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, and (b) a b)a majority of the then outstanding shares of Company Preferred Stock (other than Series B C-1 Preferred Stock), voting separately as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stockclass on an as converted basis, voting together as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate single class (clauses (a) through and (db), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has validly determined that this Agreement, the Related Agreements and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Related Agreements and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions. No other transactions contemplated hereby “control share acquisition,” “fair price,” “moratorium” or other antitakeover Legal Requirement (such Legal Requirement, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to Table of Contents bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”). As of the date hereof, neither the Company nor any of the Subsidiaries has terminated, amended or waived any rights under (or failed to enforce by seeking an injunction or by seeking to specifically enforce the terms of) any “standstill” or other similar agreement between the Company or any of the Subsidiaries and any other Person.
Appears in 1 contract
Sources: Merger Agreement (Roku, Inc)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board board of Directors directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebythereby in accordance with the terms hereof, other than the adoption of this Agreement and approval of the Merger by Company Shareholders representing the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, Requisite Shareholder Approval.
(b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Shareholder Approval is the only vote of the Stockholders Company Shareholders required under applicable Legal Requirements, Delaware Law, the Charter DGCL, the Governing Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective termsterms , subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)
Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and therebyTransactions to which it is a party. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions to which it is a party have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least Transactions to which it is a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”)party. The Requisite Stockholder Approval Vote is the only vote of the Stockholders holders of any class of capital stock of the Company required under applicable Legal Requirements, Delaware Law, Law and the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of Transactions to which the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”)is a party. This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Otonomo Technologies Ltd.)
Authority and Enforceability. (a) The Company has all requisite full power and authority to enter into execute this Agreement and any Related Agreements the other Transaction Documents to which it is (or will be) a party and to perform its obligations hereunder and thereunder and, subject to receipt of the Requisite Stockholder Shareholder Approval, to consummate the Merger and the other transactions contemplated hereby Transactions.
(b) This Agreement and thereby. The execution the other Transaction Documents have been (or will be) duly executed and delivered by the Company and, assuming the due authorization, execution, and delivery by each of the other parties hereto and thereunder, represent valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except, in each case, to the extent such enforceability is subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or other Applicable Law affecting or relating to creditors’ rights generally and general principles of equity (such exceptions, collectively, the “Enforceability Exceptions”).
(c) The Board has unanimously (i) determined that this Agreement and any Related Agreements to which the Transactions, including the Merger, are fair to, and in the best interests of the Company is a party and the Shareholders, and that, considering the financial position of the merging companies, no reasonable concern exists that the Surviving Company will be unable to fulfill the obligations of the Company to its creditors and (ii) approved and declared advisable the execution, delivery, and performance of this Agreement, Company Merger Proposal, Support Agreement and the consummation of the Transactions, including the Merger and (iii) resolved to recommend that the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally Shareholders adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors only affirmative votes or written consents of the holders of any classes or series of Company has unanimously approved Share Capital necessary to adopt this Agreement, Agreement and approve the Merger and the other transactions contemplated hereby, Transactions are affirmative vote or written consent of (i) the Shareholders holding at least (A) at least 66% of all Company Ordinary Shares and recommended Company Preferred Shares (voting together as a single voting class on an as-converted to the Stockholders to vote in favor of adoption of this Agreement Company Ordinary Shares basis) and approval (B) a majority of the Merger outstanding shares of Company Preferred Shares (voting as a separate class on an as-converted to Company Ordinary Shares basis) and the other transactions contemplated hereby (the “ii) 100% of each Shareholder holding Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations Preferred Shares that holds at least 10% of the Company enforceable against it in accordance with their respective terms, subject to Share Capital (x(i) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumand (ii) collectively, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity“Shareholder Approval”).
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject to receipt in the case of the Requisite consummation of the Merger to the Company Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the consummation by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to the Stockholders Company Stockholder Approval.
(b) The affirmative vote or consent of the Company who hold holders of (ai) at least a majority of the voting power of the outstanding shares of Company Capital Common Stock and Company Preferred Stock, voting together as a single class on an as as-converted into Company Common Stock basis, and (bii) a majority of the outstanding shares of Company Series B Preferred Stock, Stock voting as a separate class, (c) at a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class Stockholders or by written consent to adopt and (d) a majority approve this Agreement and the Merger is the only vote or consent of the outstanding shares holders of any class of capital stock or other security of the Company Series D Preferred Stock, voting as a separate class necessary to adopt and approve this Agreement and the Merger (clauses (a) through (d), collectively, the “Requisite Company Stockholder Approval”). The Requisite Stockholder Approval is the only vote execution and delivery of the Principal Stockholder Consent by each of the Principal Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents shall constitute Company Stockholder Approval.
(c) This Agreement has been duly executed and all Contracts to which delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or any Subsidiary is a party other similar Laws affecting or relating to legally adopt this Agreement creditors’ rights generally, and approve (ii) the Merger availability of injunctive relief and the other transactions contemplated hereby. equitable remedies.
(d) The Board of Directors of the Company has unanimously has, by unanimous vote of all directors then in office, (i) approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Agreement and recommended the Merger is advisable and fair to, and in the best interests of, the Company Stockholders and (iii) resolved to recommend that the Company Stockholders adopt and approve this Agreement and the Merger and directed that this Agreement and the Merger be submitted to the Company Stockholders for adoption and approval.
(e) The Company Board has taken all actions so that the restrictions in section 203 of the DGCL applicable to vote a “business combination” (as defined in favor of adoption such Section 203), and any other similar federal, state, local or foreign “fair price” or “control share acquisition” statutes, laws or regulations (any such statute, law or regulation, a “Takeover Statute”), will not apply to Parent or Merger Sub with respect to the Merger, including the execution, delivery or performance of this Agreement and approval the consummation of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityhereby.
Appears in 1 contract
Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany (the “Requisite Board Approval”)) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) at least a majority of the voting -6- power of the Company Common Stock, voting together as a single class, and (c) at least a majority of the voting power of the outstanding shares of Company Series B Preferred Stock, voting together as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate single class (clauses (a), (b) through and (dc), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the CGCL, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Authority and Enforceability. The Company has all requisite Companies have full power and authority to enter into execute, deliver and perform this Agreement and or any Related Agreements Ancillary Document delivered or to which it is a party andbe delivered pursuant to the Transaction, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby execution, delivery and thereby. The execution and delivery performance of this Agreement and any Related Agreements to which Ancillary Document by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have Companies, has been duly authorized by all necessary corporate company action on the part of the Company Companies. This Agreement has been duly executed and delivered by the Companies and (including assuming due execution and delivery by the unanimous Purchaser) constitutes the valid and legally binding obligation of the Companies, enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except for providing notice of the Transaction to the IGB and pursuant to the HSR Act, the Companies are not required to give any notice to, make any filing with or obtain any authorization, consent or approval of any Authority or Person in order for the Board of Directors of Companies to consummate the Company) Transaction, and no further corporate company or other action is required on the part of the Company Companies to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company Sellers who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority Units in the Sellers Approval. From and after consummation of the outstanding shares Merger, ▇▇▇▇▇▇▇ Capital, LLC will not be engaged in the video gaming business in the State of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”)Illinois. The Requisite Stockholder Sellers Approval is the only vote of the Stockholders holders of Units required under applicable Legal Requirements, Delaware Illinois Law, the Charter Documents and all Contracts to which Articles of Formation, operating agreement or other governing documents of the Company or any Subsidiary is a party Companies, to legally adopt this Agreement and to approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors Managers of the each Company has unanimously approved this Agreement, the Merger and the other transactions contemplated herebyTransactions, and recommended to the Stockholders Sellers to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityTransactions.
Appears in 1 contract
Sources: Merger Agreement (Boyd Gaming Corp)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger Mergers and the other transactions contemplated hereby and thereby. The Company representations in all certificates delivered under this Agreement, including all certificates delivered at Closing, will be true and correct in all material respects. The execution and delivery of this Agreement and any Related Agreements to which the Company it is a party and the consummation of the Merger Mergers and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements Agreement to which the Company is a party or to consummate the Merger Mergers or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the First Merger by (i) the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class and on an as converted into as-converted-to-Company Common Stock basis, basis and (bii) the Stockholders who hold at least a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, Stock (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote or approval of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Mergers and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (xi) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, general and (yii) rules of law governing specific performance, injunctive relief, other equitable remedies and other by general principles of equityequity (regardless of whether considered in a proceeding in equity or at law) ((i) and (ii) together, the “Bankruptcy and Equity Exception”).
(c) No “fair price,” “moratorium,” “interested stockholder,” “control share acquisition,” “business combination” or any other anti-takeover Law enacted under state or federal Law (including Section 203 of Delaware Law) or any anti-takeover provision in the Charter Documents is applicable to the Company, any shares of Company Capital Stock or other Company Securities, this Agreement, or the Mergers or the other transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Pacific Biosciences of California, Inc.)
Authority and Enforceability. The Company (a) Each member of the Buckeye Group has all the requisite power and authority to enter into this Agreement and any Related Agreements Agreement, to which it is a party perform its obligations hereunder and, subject to receipt of the Requisite Stockholder ApprovalBuckeye Consents, to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution execution, performance and delivery by each member of the Buckeye Group of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval each member of the Board of Directors Buckeye Group. Each member of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company Buckeye Group has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company this Agreement, and assuming the due authorization, execution received all necessary approvals of its stockholders and delivery by the board of directors or other parties hereto equity holders and thereto, constitute governing body. This Agreement constitutes the valid and binding obligations obligation of each member of the Company Buckeye Group, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumfraudulent conveyance, the relief of debtors and enforcement of reorganization, moratorium or other similar Laws affecting or relating to creditors’ rights in generalgenerally, (ii) the availability of injunctive relief and other equitable remedies, and (yiii) rules receipt of law governing specific performancethe Buckeye Consents.
(b) Each member of the Buckeye Group has the requisite power and authority to enter into each Ancillary Agreement to which it is, or is specified to be, a party, to perform its obligations thereunder, and to consummate the transactions contemplated thereby. The execution, performance and delivery by each member of the Buckeye Group of each Ancillary Agreement to which it is, or is specified to be, a party and the consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate, limited liability company or other action on the part of each member of the Buckeye Group. Each member of the Buckeye Group has duly executed and delivered each Ancillary Agreement to which it is, or is specified to be, a party. The Ancillary Agreements constitute the valid and binding obligation of each member of the Buckeye Group party thereto, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to creditors’ rights generally, (ii) the availability of injunctive relief, relief and other equitable remedies remedies, and other general principles (iii) receipt of equitythe Buckeye Consents.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Greetings Corp)
Authority and Enforceability. (a) The Company has all requisite full power and authority to enter into execute this Agreement and any Related Agreements the other Operative Documents to which it is (or will be) a party and to perform its obligations hereunder and thereunder and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions by affirmative vote or written consent of the holders of at least (a) a majority of all shares of Common Stock and Preferred Stock (voting together as a single voting class on an as-converted to Common Stock basis), and (b) the holders of a majority of the outstanding shares of Series A Shares, Series B Shares and Series B-1 Shares (voting as a separate voting class on an as-converted to Common Stock basis) (collectively, the “Company RecommendationStockholder Approval”). , to consummate the Merger and the other Transactions.
(b) This Agreement and each of the Related Agreements other Operative Documents to which the Company is (or will be) a party have been (or will be) duly executed and delivered by the Company and and, assuming the due authorization, execution execution, and delivery by each of the other parties hereto and thereto, constitute the represent valid and binding obligations of the Company Company, enforceable against it the Company in accordance with their respective terms, except, in each case, to the extent such enforceability is subject to (x) Legal Requirements the effect of general application relating to any applicable bankruptcy, insolvency, reorganization, moratorium, the relief of debtors and enforcement of or other Applicable Law affecting or relating to creditors’ rights in general, and (y) generally or rules of law Applicable Law governing specific performance, injunctive relief, relief and other equitable remedies (the “Bankruptcy and Equity Exception”). The execution, delivery, and performance by the Company of this Agreement and the other general principles Operative Documents to which the Company is (or will be) a party and the consummation by the Company of equitythe Transactions do not and will not violate or conflict or result in a breach of or constitute a default under any provision of the Certificate of Incorporation or Bylaws.
(c) The board of directors of the Company has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to, and in the best interests of, the Company and the Stockholders, (ii) approved and declared advisable the execution, delivery, and performance of this Agreement and the consummation of the Transactions, including the Merger, and (iii) resolved to recommend that the Stockholders adopt this Agreement and approve the Merger and the other Transactions. The only affirmative votes or written consents of the holders of any classes or series of Capital Stock necessary to adopt this Agreement and approve the Merger and the other Transactions are the votes that constitute the Stockholder Approval. All actions taken by the Company or its Representatives to solicit and obtain the Stockholder Approval with respect to this Agreement have been and will be taken in compliance with Applicable Law.
(d) The Company is not subject to the requirements of subdivision (b) of Section 2115 of the General Corporation Law of the State of California pursuant to the terms of such Section 2115.
Appears in 1 contract
Authority and Enforceability. The (a) Subject to the approval of this Agreement by the Company Shareholders, the Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements each of the other Transaction Documents to which it the Company is or will be a party andparty, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery by the Company of this Agreement and any Related Agreements each of the other Transaction Documents to which the Company is or will be a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by the Company Board on or before the Agreement Date. This Agreement and of the other Transaction Documents to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Acquiror and theretothe Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject to except as enforcement may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreceivership, conservatorship, arrangement, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the relief rights or remedies of debtors and enforcement creditors generally, or (ii) the rules governing the availability of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, relief or other equitable remedies and other general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) On or prior to the Agreement Date, the Company Board, by resolutions duly adopted by the unanimous vote of the Company Board members present, has (i) approved this Agreement, the Certificate of Merger, the Articles of Merger and the Merger; (ii) determined that this Agreement is advisable and in the best interests of the Company and the Company Shareholders; (iii) directed that this Agreement and the Merger be submitted to the Company Shareholders for consideration; and (iv) recommended that the Company Shareholders approve the adoption of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mathstar Inc)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger Mergers and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger Mergers and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the participating Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger Mergers or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger Mergers by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) at least a majority of the voting power of the outstanding shares of Company Series B Preferred Stock, voting together as a separate classsingle class on an as converted into Company Common Stock basis, (c) at least a majority of the voting power of the outstanding shares of Company Series C Preferred Common Stock, voting together as a separate single class and (d) at least a majority of the outstanding shares voting power of the Company Series D Preferred Stock, voting together as a separate single class on an as converted to Company Common Stock basis (clauses (a), (b), (c) through and (d), collectively, the “Requisite Stockholder Approval”). .
(b) The Requisite Stockholder Approval is the only vote approval of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Mergers and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (the “Enforceability Limitations”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Square, Inc.)
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject to receipt in the case of the Requisite consummation of the Merger to the Company Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the consummation by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to the Stockholders Company Stockholder Approval. The affirmative vote of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Common Stock at a separate class, (c) a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval Stockholders to adopt this Agreement is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which holders of any class of capital stock or other security of the Company or any Subsidiary is a party necessary to legally adopt approve this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “"Company Recommendation”Stockholder Approval"). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Parent and theretoMerger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ ' rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Board of Directors of the Company has, by the unanimous vote of all directors then in office, (i) approved this Agreement and other general principles the transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of equitythe Company Stockholders and (iii) resolved to recommend that the Company Stockholders adopt this Agreement and directed that this Agreement be submitted to the Company Stockholders for adoption.
Appears in 1 contract
Sources: Merger Agreement (EUSA Pharma Inc)
Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Company Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany (the "Requisite Company Board Approval")) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) and a majority of the outstanding shares each series and of Company Series B Preferred Stock, voting as a separate class, (c) a majority each class of the outstanding shares of Company's stock voting separately (the "Requisite Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”"). The Requisite Company Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions (the “"Company Recommendation”"). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ ' rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the "Enforceability Limitations").
Appears in 1 contract
Sources: Merger Agreement (EnteroMedics Inc)
Authority and Enforceability. The Company Each of Parent and Merger Sub has all requisite full corporate power and authority to enter into this Agreement and any Related the Operative Agreements to which it is a party, subject in the case of the issuance of shares of Parent Common Stock in the Merger to Parent Stockholder Approval and to perform its obligations hereunder and thereunder and to consummate the Merger. The execution, delivery and performance of this Agreement and the Operative Agreements to which it is a party and, subject to receipt by each of the Requisite Stockholder Approval, to consummate the Parent and Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party Sub and the consummation by each of Parent and Merger Sub of the Merger and the other transactions contemplated hereby and thereby have been duly authorized and validly approved by all necessary their respective Board of Directors and no other corporate action proceedings on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate Parent or other action is required on the part of the Company its stockholders or Merger Sub or Parent as its sole stockholder are necessary to authorize the execution, delivery and performance of this Agreement and any Related or the Operative Agreements to which the Company it is a party or to consummate by each of Parent and Merger Sub and the consummation by each of Parent and Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval Sub of the Merger by the Stockholders Merger. The affirmative votes of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Parent Common Stock at a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote duly convened meeting of the Stockholders required under applicable Legal Requirements, Delaware Law, of Parent (the Charter Documents and all Contracts "PARENT STOCKHOLDERS' MEETING") (i) to which approve the Company or any Subsidiary is a party increase in the number of authorized shares of capital stock of Parent from 250,000,000 to legally adopt this Agreement and approve 500,000,000 shares (the "PARENT AUTHORIZED STOCK INCREASE") so as to permit the issuance of the shares of Parent Common Stock pursuant to the Merger and (ii) to approve the other transactions contemplated hereby. The Board change of Directors Parent's corporate name to Cryptometrics, Inc. (the "PARENT AUTHORIZED NAME CHANGE") (the "PARENT AUTHORIZED STOCK INCREASE" and the "PARENT AUTHORIZED NAME CHANGE" are collectively referred to herein, from time to time as the "PARENT STOCKHOLDER APPROVAL") are the only votes of the Company has unanimously approved this Agreement, holders of any class of capital stock or other security necessary in connection with the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”)Merger. This Agreement and each of the Related Operative Agreements to which the Company it is a party have been duly and validly executed and delivered by the Company each of Parent and assuming the due authorizationMerger Sub and constitute legal, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company Parent and Merger Sub enforceable against it each of them in accordance with their respective terms, subject to except as the enforceability thereof may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ ' rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equityremedies.
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least sixty six and two-thirds percent (66 2/3%) of the outstanding shares of Company Preferred Stock, voting together as a single class on an as converted into Company Common Stock basis, and (b) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, basis (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Company Requisite Stockholder Approval”). The Company Requisite Stockholder Approval is the only vote or approval of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general.
(c) No “fair price,” “moratorium,” “interested stockholder,” “control share acquisition,” “business combination” or any other anti-takeover Law or similar Law enacted under state or federal Law (including Section 203 of Delaware Law) or any anti-takeover provision in the Charter Documents is applicable to the Company, and (y) rules any shares of law governing specific performanceCompany Capital Stock or other Company Securities, injunctive reliefthis Agreement, or the Merger or the other equitable remedies and other general principles of equitytransactions contemplated hereby.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Elastic N.V.)
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this each Ancillary Agreement and any Related Agreements to which the Company is a party and to perform its obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance by the Company of this Agreement and each Ancillary Agreement and the consummation of the Merger and the other transactions contemplated hereby and thereby thereby, including the Merger and the Charter Amendment, have been duly authorized by all necessary corporate action on the part of the Company subject only to approval by (including a) the unanimous approval holders of a majority of the Board votes represented by the outstanding shares of Directors of the Company) and no further corporate or other action is required Company Capital Stock entitled to vote on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is Merger, voting together as a party or to consummate single class, (b) the Merger or any other transactions contemplated hereby and thereby, other than the adoption holders of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the then-outstanding shares of Company Capital Series D Preferred Stock, voting together as a single class, (c) the holders of at least a majority of the then-outstanding shares of Series E Preferred Stock, voting together as a single class, (c) the holders of at least a majority of the Series F Preferred Stock, voting together as a single class, and (d) the holders of at least two-thirds of the then-outstanding shares of Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, voting together as a single class on an as as-converted into Company to Common Stock basis, (b) in each case at a majority meeting duly noticed and held, or by written consent, in compliance with all applicable requirements of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, DGCL and any other applicable Law and the Company’s Governing Documents (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder ApprovalVote”). The Requisite Stockholder Approval is Without limiting the only vote of the Stockholders required under applicable Legal Requirements, Delaware Lawforegoing, the Charter Documents Company Board has (i) at a meeting thereof duly called and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement held unanimously adopted resolutions approving and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved declaring advisable this Agreement, the Merger and the other transactions contemplated herebyby this Agreement, (ii) at a meeting thereof duly called and recommended to held unanimously determined that the Stockholders to vote in favor of adoption terms and conditions of this Agreement and approval of Agreement, the Merger and the other transactions contemplated hereby by this Agreement are fair to and in the best interests of the Company and the Stockholders and (iii) made the “Company Board Recommendation”). The Company has duly and validly executed and delivered this Agreement and, on or prior to the Closing, the Company will have duly and validly executed and delivered each Ancillary Agreement to which it is a party. This Agreement constitutes, and upon execution and delivery each of the Related Agreements Ancillary Agreement to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorizationwill constitute, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject to except as enforcement thereof may be limited by (xA) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, moratorium and similar laws, both state and federal, affecting the relief of debtors and enforcement of creditors’ rights or remedies in general, and general as from time to time in effect or (yB) rules the exercise by courts of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity powers.
Appears in 1 contract
Sources: Merger Agreement (Radisys Corp)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby. Without limiting this representation, other than the adoption of this Agreement has been adopted and approval of the Merger approved by the Stockholders who hold at least 93% of the issued and outstanding shares of the Company who hold (a) Capital Stock and at least a majority of the voting power of the issued and outstanding shares of each class of the Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectivelytogether, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is approvals of the Board of Directors of the Company and of at least a majority of the issued and outstanding shares of each class of the Company Capital Stock described in this paragraph are the only vote votes or approvals of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Mergers and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general.
(c) No “fair price,” “moratorium,” “interested stockholder,” “control share acquisition,” “business combination” or any other anti-takeover Law or similar Law enacted under state or federal Law or any anti-takeover provision in the Charter Documents is applicable to the Company, and (y) rules any shares of law governing specific performanceCompany Capital Stock or other Company Securities, injunctive reliefthis Agreement, or the Merger or the other equitable remedies and other general principles of equitytransactions contemplated hereby.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sarcos Technology & Robotics Corp)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) at least a majority of the voting power of the outstanding shares of Company Series B Preferred Stock, voting as a separate classCompany Series B-1 Preferred Stock, (c) a majority of the outstanding shares of Company Series B-2 Preferred Stock and Company Series C Preferred Stock, voting together as a separate single class and on an as converted into Company Common Stock basis, (dc) at least a majority of the voting power of the outstanding shares of Company Series D Common Stock, voting together as a single class and (d) at least a majority of the voting power of the outstanding shares of Company Preferred Stock, voting together as a separate single class on an as converted into Company Common Stock basis (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). .
(b) The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 1 contract
Sources: Merger Agreement (Acxiom Corp)
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt each of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Ancillary Agreements to which the Company is a party and to perform the consummation Company’s obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of the Merger this Agreement and the other transactions contemplated hereby and thereby Ancillary Agreements have been duly authorized by all necessary corporate action on the part of the Company subject only to approval by (including w) the unanimous approval holders of a majority of the Board votes represented by the outstanding shares of Directors of the Company) and no further corporate or other action is required Company Capital Stock entitled to vote on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is Merger, voting as a party or to consummate single class (x) the Merger or any other transactions contemplated hereby and thereby, other than the adoption holders of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the then outstanding shares of Company Capital StockCommon Stock voting as a single class, (y) the holders of at least a majority of the then outstanding shares of Preferred Stock voting together as a single class on an as as-converted into Company to Common Stock basis and (z) the holders of at least a majority of the then outstanding shares of Series F Preferred Stock, voting on an as-converted to Common Stock basis, (b) in each case, at a majority meeting duly noticed and held, or by written consent, in compliance with all applicable requirements of the outstanding shares of Company Series B Preferred Stock, voting as a separate classDGCL (the approval referenced in clauses (w), (cx), (y) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (dz) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is Without limiting the only vote foregoing, the board of directors of the Stockholders required under applicable Legal RequirementsCompany, Delaware Lawat a meeting thereof duly called and held, has duly adopted resolutions by the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved requisite majority vote approving this Agreement, the Merger and the other transactions contemplated herebyby this Agreement, determining that the terms and recommended to the Stockholders to vote in favor of adoption conditions of this Agreement and approval of Agreement, the Merger and the other transactions contemplated hereby (by this Agreement are fair to, and in the “best interests of, the Company Recommendation”)and its Stockholders and recommending that the Company’s Stockholders adopt and approve this Agreement. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the Related other parties to the Agreement, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to (a) laws of general application relating to bankruptcy, insolvency, and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. Upon the execution and delivery by the Company of the Ancillary Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by each of the other parties hereto and theretoto each Ancillary Agreement, such Ancillary Agreements will constitute the legal, valid and binding obligations of the Company Company, enforceable against it the Company in accordance with their respective terms, subject to (xa) Legal Requirements laws of general application relating to bankruptcy, insolvency, moratorium, and the relief of debtors and enforcement of creditors’ rights in generaldebtors, and (yb) rules of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equityremedies.
Appears in 1 contract
Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Company Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany (the “Requisite Company Board Approval”)) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders (i) holders of at least 67% of the outstanding shares of Company who hold Preferred Stock, voting together as a single class and on an as converted to Company Common Stock basis, and (aii) holders of at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class and on an as converted into to Company Common Stock basis, basis (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Company Stockholder Approval”). The Requisite Company Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Sources: Merger Agreement (EnteroMedics Inc)
Authority and Enforceability. (a) The Company Seller has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements each other agreement, document, instrument and/or certificate contemplated by this Agreement to which it is a party andbe executed by the Seller in connection with the Transactions (all agreements, subject documents, instruments and certificates to receipt of be executed and delivered by the Requisite Stockholder ApprovalSeller or the Buyer in connection with the Transactions, the “Ancillary Documents”), and to consummate the Merger perform its obligations hereunder and the other transactions contemplated hereby and therebythereunder. The execution execution, delivery and delivery performance by the Seller of this Agreement and any Related Agreements the Ancillary Documents to which the Company Seller is a party party, and the consummation by the Seller of the Merger and the other transactions contemplated hereby and thereby Transactions, have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) Seller, and no further corporate or other action is required necessary on the part of the Company Seller to authorize this Agreement and any Related Agreements to which the Company is a party or such Ancillary Documents or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Seller Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements Ancillary Document to which the Company Seller is a party have been duly executed and delivered by the Company and Seller, and, assuming the due authorization, execution and delivery by the each other parties hereto and party thereto, each constitutes (or will constitute the upon execution) a legal, valid and binding obligations obligation of the Company Seller, enforceable against it the Seller in accordance with their its respective terms, subject to except as limited by the Bankruptcy and Equity Exception.
(xb) Legal Requirements The board of general application relating to bankruptcy, insolvency, moratoriumdirectors of the Seller (the “Seller Board”) has duly adopted resolutions by which the Seller Board has: (i) determined that the sale of the Membership Interests, the relief other Transactions and this Agreement are advisable and fair to and in the best interests of debtors the Seller and enforcement its stockholders; (ii) authorized and approved the execution, delivery and performance of creditors’ rights in general, this Agreement (including the sale of the Membership Interests) by the Seller; (iii) resolved to recommend the Transactions to the Seller’s stockholders for Seller Stockholder Approval (the “Seller Board Recommendation”); and (yiv) rules directed that this Agreement and the transactions contemplated hereby be submitted to the holders of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equitySeller Common Stock for their adoption.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Remark Holdings, Inc.)
Authority and Enforceability. (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board board of Directors directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebythereby in accordance with the terms hereof, other than the adoption of this Agreement and approval of the Merger by Company Shareholders representing the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, Requisite Shareholder Approval.
(b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Shareholder Approval is the only vote of the Stockholders Company Shareholders required under applicable Legal Requirements, Delaware Law, the Charter DGCL, the Governing Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective termsterms , subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the First Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger Mergers and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger Mergers or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and the approval of the Merger Mergers by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Mergers and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger Mergers and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Mergers and the other transactions contemplated hereby Transactions (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been or will be duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute or will, when executed, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Authority and Enforceability. (a) The Company has all the requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyMerger. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby by this Agreement have been duly authorized by all necessary corporate action on the part of the Company (Company, including the unanimous approval and adoption of this Agreement and the Board of Directors of Merger by the Company) Company Stockholders, and no further other corporate or other action is required proceedings on the part of the Company are necessary to authorize this Agreement and any Related Agreements to which the Company is a party or Agreement, to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of by this Agreement (other than the filing and approval recordation of appropriate merger documents as required by the Merger and the other transactions contemplated hereby (the “Company Recommendation”DGCL). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto and theretohereto, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of creditors’ moratorium or other similar laws affecting or relating to creditors rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Board of Directors of the Company has unanimously (i) approved this Agreement and the Merger and the other general principles transactions contemplated by this Agreement, (ii) determined that the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of equitythe Company Stockholders, and (iii) recommended that the Company Stockholders approve this Agreement and the Merger.
(c) Stockholders representing at least 80% of the outstanding Company Shares on an as-converted to Common Stock basis and at least 80% of the outstanding Company Preferred Shares have approved this Agreement and the Merger pursuant to the written consents executed contemporaneously herewith and no other vote or consent of the holders of any class of Capital Stock or other Equity Security is necessary to approve this Agreement and the Merger.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party Agreement, and, subject in the case of the consummation of the Merger to receipt of the Requisite Company Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery of this Agreement and any Related Agreements to which by the Company is a party and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors consummation of the Company) and no further corporate or other action is required on the part Merger to receipt of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Parent and theretoMerger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ rights in generaland remedies generally, and (yii) rules of law governing specific performanceas to enforceability, injunctive relief, other equitable remedies and other to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(b) The affirmative vote or consent of the holders of a majority of the then outstanding Company Shares voting as a single class at a duly convened meeting of the Company Stockholders to adopt and approve this Agreement and the Merger, or by written consent of the Company Stockholders in lieu of such meeting, are the only votes or consents of the holders of any class of capital stock or other security necessary to adopt and approve this Agreement and the Merger.
(c) The Board of Directors of the Company has, by the unanimous vote of all directors then in office, duly adopted resolutions (i) approving and declaring advisable this Agreement, the Merger and the transactions contemplated hereby, (ii) directing that the adoption of this Agreement be submitted to the Company Stockholders and (iii) recommending that the Company Stockholders adopt this Agreement.
Appears in 1 contract
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into into, execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt each of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Company Ancillary Agreements to which the Company is a party and to perform the consummation Company's obligations under this Agreement and each such Company Ancillary Agreement. The execution, delivery and performance of the Merger this Agreement and the other transactions contemplated hereby and thereby Company Ancillary Agreements by the Company have been duly authorized by all necessary corporate action (including without limitation action on the part of the Company (including the unanimous approval Company's board of the Board of Directors of the Companydirectors) and no further corporate or other action is required on the part of the Company subject only to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption approval of this Agreement and approval of the Merger by (w) the Stockholders holders of a majority of the votes represented by the outstanding shares of Company who hold Capital Stock entitled to vote on this Agreement and the Merger, voting as a single class, (ax) the holders of at least a majority of the voting power of the then outstanding shares of Company Capital Stockthe Company's Common Stock , voting together as a single class on an as converted into Company Common Stock basisclass, (by) the holders of a majority of the then outstanding shares of Company Series B the Company's Preferred Stock, voting as a separate single class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (dz) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only any other vote or approval of the Stockholders required under by the DGCL or the CGCL, in each case at a meeting duly called, noticed and held, or by written consent, in compliance with all applicable Legal Requirementsrequirements of the DGCL, Delaware CGCL, other applicable Law and the Company's Certificate of Incorporation and Bylaws, each as amended (the approval referenced in clauses (x) (y) and (z) the "Requisite Stockholder Approval"). Without limiting the foregoing, the board of directors of the Company, at a meeting thereof duly called, noticed and held at which a quorum was at all times present, has duly adopted resolutions by the requisite majority vote required by the DGCL, CGCL, other applicable Law, the Charter Documents Company's Certificate of Incorporation and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved Bylaws, each as amended approving this Agreement, the Merger and the other transactions contemplated herebyby this Agreement, determining that the terms and recommended to the Stockholders to vote in favor of adoption conditions of this Agreement and approval of Agreement, the Merger and the other transactions contemplated hereby (by this Agreement are fair to, and in the “best interests of, the Company Recommendation”)and its Stockholders and are advisable and recommending that the Company's Stockholders adopt and approve this Agreement and the Merger. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the Related other parties to the Agreement, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effect of (a) laws of general application relating to bankruptcy, insolvency, and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. Upon the execution and delivery by the Company of each of the Company Ancillary Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by each of the other parties hereto and theretoto each Company Ancillary Agreement, such Company Ancillary Agreements will constitute the legal, valid and binding obligations of the Company Company, enforceable against it the Company in accordance with their respective terms, subject to the effect of (xa) Legal Requirements laws of general application relating to bankruptcy, insolvency, moratorium, and the relief of debtors and enforcement of creditors’ rights in generaldebtors, and (yb) rules of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equityremedies.
Appears in 1 contract
Sources: Merger Agreement (Adaptec Inc)
Authority and Enforceability. The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder ApprovalApproval and regulatory approvals, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by at least a majority in voting power of (i) the Stockholders then outstanding shares of (A) Company Voting Preferred Stock and (B) the Company who hold then outstanding shares of Series F Preferred Stock, voting separately as a class and (aii) at least a majority of the in voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basisand, (b) a majority of with respect to the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting Series E Preferred Stock, and Series G Preferred Stock, on an as a separate class converted to Class A Common Stock basis (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, Law and the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby Transactions (the “Company Recommendation”). This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite corporate power and authority authority, including the unanimous approval of the Company Board, to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, including (bi) a majority the affirmative vote of holders of sixty percent (60%) of the issued and outstanding shares of the Company Series A Preferred Stock, voting together as a single class on as converted basis, and the affirmative vote of holders of sixty-six percent (66%) of the issued and outstanding shares of the Company Series B Preferred Stock, voting together as a separate class, single class on as converted basis (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. Transactions.
(b) The Company Board of Directors of has unanimously determined that this Agreement and the Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that any restrictions on business combinations under applicable Legal Requirements are not applicable to this Agreement and the Transactions and no “control share acquisition,” “fair price,” “moratorium” or other transactions contemplated hereby antitakeover Legal Requirement applies to this Agreement or the Transactions.
(the “Company Recommendation”). c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (yii) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (i) and (ii) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Sources: Merger Agreement (Medallia, Inc.)
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger Transactions by the Stockholders of the Company who hold (ai) at least a majority of the voting power of the outstanding shares of Company Capital Voting Common Stock and Voting Preferred Stock, voting together as a single class on an as as-converted into to Company Common Stock basis, (bii) a majority at least sixty-seven percent (67%) of the outstanding shares of Preferred Stock, voting together as a single class on an as-converted to Company Common Stock basis, (iii) at least sixty-seven percent (67%) of the outstanding shares of Voting Preferred Stock, voting together as a single class on an as-converted to Company Common Stock basis, and (iv) at least sixty percent (60%) of the outstanding shares of Series B Preferred Stock, voting as a separate classseries (the foregoing clauses (i), (cii), (iii) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (div) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that any restrictions on business combinations set forth in Section 203 of Delaware Law are not applicable to this Agreement and the Transactions and no “control share acquisition,” “fair price,” “moratorium” or other transactions contemplated hereby antitakeover Legal Requirement (such Law, including Section 203 of Delaware Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
(d) The Company and the Company Board have taken all actions necessary to effect the transactions anticipated by Section 1.6(b)(iv) under the Plan, all Company Options, and any other plan or arrangement of the Company (whether written or oral, formal or informal) governing the terms of any Company Options, including (i) the determination by the administrators of the Plan that the treatment of Company Options contemplated by Section 1.6(b)(iv) is permissible under the terms of the Plan and the applicable equity award agreements, and (ii) the delivery of all required notices and the procurement of all necessary approvals and consents from third parties necessary to effectuate the foregoing.
(e) The Company has complied with the provisions of, and no breach, violation or default exists under, any Contract to which the Company or any of its Subsidiaries is a party that provides for any notice or negotiation rights with respect to an acquisition of the Company.
Appears in 1 contract
Sources: Merger Agreement (FireEye, Inc.)
Authority and Enforceability. The Company has all requisite corporate power and authority to enter into into, execute and deliver this Agreement and any the Company Related Agreements to which it is a party andparty, subject to receipt of the Requisite Stockholder Approvalperform its obligations hereunder and thereunder, and to consummate the Merger and the other transactions contemplated hereby and thereby. The entry into and execution and delivery of this Agreement and any the Company Related Agreements to which the Company is a party party, the performance of the obligations hereunder and thereunder, and the consummation of the Merger and the other transactions contemplated hereby and thereby thereby, have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) , and no further corporate or other action is required on the part of the Company to authorize this the Agreement and any the Company Related Agreements to which the Company is a party or to consummate and the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval subject only to receipt of the Merger by the Stockholders of the Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Required Stockholder Approval”). The Requisite Required Stockholder Approval is the only vote or consent of Company Securityholders required to adopt this Agreement and approve the Stockholders required Merger, the Certificate Amendment, and the other transactions contemplated hereby and by the Company Related Agreements to which the Company is a party under applicable Legal Requirements, Delaware Lawthe Charter Documents, the Subsidiary Charter Documents and all Contracts any other Contract to which the Company or any Company Subsidiary is a party to legally adopt this Agreement and approve party. The Company Board has (a) unanimously resolved that the Merger and the other transactions contemplated hereby. The Board of Directors Certificate Amendment are advisable and in the best interests of the Company has and its stockholders, (b) unanimously approved this Agreement, Agreement and the Merger and the other transactions contemplated herebyCertificate Amendment, and recommended to (c) directed that the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the Certificate Amendment be submitted to the Company Stockholders for consideration, and (d) unanimously recommended that all of the Company Stockholders adopt this Agreement and approve the Merger and the Certificate Amendment and the other transactions contemplated hereby (matters set forth in the “Company Recommendation”)Stockholder Written Consent and not exercise their dissenters’ or appraisal rights under the applicable provisions of Delaware Law in connection with the Merger. This Agreement and each of the Company Related Agreements to which the Company is a party have Agreement has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute constitutes the valid and binding obligations obligation of the Company enforceable against it the Company in accordance with their respective its terms, subject only to the effect, if any, of (xi) applicable bankruptcy and other similar Legal Requirements affecting the rights of creditors generally and (ii) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, relief and other equitable remedies and other general principles of equityremedies.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Quotient Technology Inc.)
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, and to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board board of Directors directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval of the Merger by the Stockholders of approval of, in the aggregate, (i) Company who hold Ordinary Shares representing more than fifty percent (a50%) at least a majority of the voting power of the outstanding shares Company Ordinary Shares and (ii) Company Preferred Series B Shares representing more than fifty percent (50%) of the voting power of the Company Capital StockPreferred Series B Shares, voting together as a single class class, on an as as-converted into Company Common Stock basis, basis (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Shareholder Approval”). The Requisite Stockholder Shareholder Approval is the only vote or approval of the Stockholders Shareholders required under applicable Legal Requirements, Delaware Law, the Charter BVI Act, the Governing Documents and all Contracts to which the Company or any Subsidiary Company Entity is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby .
(the “Company Recommendation”). b) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company Company, enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (the “Enforceability Limitations”).
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite necessary corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt in the case of the Requisite consummation of the Merger to the Company Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby and therebyhereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the consummation by the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including Company, subject in the unanimous approval case of the Board of Directors of the Company) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than the adoption of this Agreement and approval consummation of the Merger by to the Stockholders Company Stockholder Approval. The affirmative vote of the Company who hold (a) at least a majority holders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as Shares entitled to vote at a separate class, (c) a majority duly convened meeting of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval Stockholders to adopt this Agreement is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which holders of any class of capital stock or other security of the Company or any Subsidiary is a party necessary to legally adopt approve this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company RecommendationStockholder Approval”). This Agreement and each of the Related Agreements to which the Company is a party have has been duly executed and delivered by the Company and and, assuming the due authorization, execution and delivery by the other parties hereto Parent and theretothe Merger Sub, constitute constitutes the valid and binding obligations obligation of the Company Company, enforceable against it in accordance with their respective its terms, subject to except as such enforceability may be limited by (xi) Legal Requirements of general application relating to bankruptcy, insolvency, moratoriumreorganization, the relief of debtors and enforcement of moratorium or other similar Laws affecting or relating to creditors’ rights in generalgenerally, and (yii) rules the availability of law governing specific performance, injunctive relief, relief and other equitable remedies remedies.
(b) The Company Board has, by the unanimous vote of all directors then in office, (i) approved this Agreement and other general principles the transactions contemplated hereby, (ii) determined that the Merger is advisable and in the best interests of equitythe Company Stockholders, (iii) resolved, subject to Section 6.6, to recommend that the Company Stockholders adopt this Agreement and directed that this Agreement be submitted to the Company Stockholders for adoption, and (iv) taken the actions contemplated by Section 4.23, and the Company Board and the Board of Directors of International Securities Exchange, LLC (“ISE LLC”) has each approved an amendment to the Bylaws of the Company to waive the ownership and voting limitations set forth in the Company’s certificate of incorporation (subject to obtaining the SEC Approval).
Appears in 1 contract
Sources: Merger Agreement (International Securities Exchange Holdings, Inc.)
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and therebyTransactions. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the Merger and the other transactions contemplated hereby and thereby Transactions have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the CompanyCompany Board) and no further corporate or other action is required on the part of the Company to authorize this Agreement and any Related Agreements to which the Company is a party or to consummate the Merger or any other transactions contemplated hereby and therebyTransactions, other than the adoption of this Agreement and approval of the Merger by the Stockholders of the Company who hold (a) at least a majority sixty-six and two thirds percent (66 2/3%) of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as as-converted into to Company Common Stock basis, basis (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger Transactions.
(b) The Company Board has unanimously determined that this Agreement and the other transactions contemplated hereby. The Board of Directors of Transactions are advisable, fair to, and in the best interests of, the Company has unanimously and its Stockholders, approved this Agreement, the Merger Agreement and the other transactions contemplated herebyTransactions, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger Transactions. The Company Board has taken all necessary actions so that any restrictions on business combinations under applicable Legal Requirements are not applicable to this Agreement and the Transactions and no “control share acquisition,” “fair price,” “moratorium” or other transactions contemplated hereby antitakeover Legal Requirement (such Law, “Takeover Law”) applies to this Agreement or the “Company Recommendation”). Transactions.
(c) This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, subject to (x) Legal Requirements of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, and (y) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equityequity (clauses (x) and (y) collectively, the “Enforceability Limitations”).
Appears in 1 contract
Sources: Merger Agreement (FireEye, Inc.)
Authority and Enforceability. (a) The Company has all the requisite power and authority to enter into this Agreement and any Related each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement, each of the Ancillary Agreements to which it is a party and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company (including the unanimous approval of the Board of Directors of the Company) and no further corporate or other action is required necessary on the part of the Company to authorize this Agreement, any Ancillary Agreement and any Related Agreements to which the Company it is a party or to consummate the Merger or any other transactions contemplated hereby and thereby, other than subject to the adoption of this Agreement and approval receipt of the Merger by the Stockholders of the Required Company who hold (a) at least a majority of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated hereby. The Board of Directors of the Company has unanimously approved this Agreement, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (the “Company Recommendation”)Vote. This Agreement and each of the Related Ancillary Agreements to which the Company it is a party have been duly executed and delivered by the Company and assuming the Company. Assuming due authorization, execution and delivery by the Parent and the other parties hereto and thereto, constitute this Agreement and each of the Ancillary Agreements constitutes the valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject to except as limited by (xa) Legal Requirements of general application relating to bankruptcy, insolvency, reorganization, moratorium, the relief of debtors and enforcement of fraudulent conveyance or other similar Laws relating to creditors’ rights in general, generally and (yb) rules of law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law.
(b) The board of directors of the Company, has determined by unanimous approval of all directors that (i) the Merger is fair, from a financial point of view, to the Stockholders and is in the best interests of the Company, and (ii) to unanimously recommend that the Stockholders vote in favor of the Merger, this Agreement and the transactions contemplated thereby and hereby.
(c) The Merger requires the affirmative vote of (i) a majority of Common Stock and Preferred Stock voting together as a single class, and (ii) eighty-five percent (85%) of the outstanding Preferred Stock, voting together as a single separate class (the “Required Company Stockholder Vote”). Other than the Required Company Stockholder Vote, no other vote of any holders of common stock, options, warrants, bonds, debentures, notes, other indebtedness or other securities of the Company is required under Law, the Company’s Organizational Documents or otherwise in order to consummate the Merger. The Company is not subject to Section 2115 of the California Corporations Code.
Appears in 1 contract
Authority and Enforceability. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement and any Related Agreements to which it is a party and, subject to receipt each of the Requisite Stockholder Approval, to consummate the Merger and the other transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Ancillary Agreements to which the Company is a party and, subject only to the Company Shareholder Approval, to perform the Company’s obligations under this Agreement and each such Ancillary Agreement to which it is a party and to consummate the Merger. The execution, delivery and performance by the Company of this Agreement and any Ancillary Agreement to which it is a party, and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby Merger, have been duly authorized and approved by all necessary the board of directors of the Company and, except for obtaining the Company Shareholder Approval, no other corporate action on the part of the Company (including is necessary to authorize the unanimous approval of the Board of Directors of the Company) execution, delivery and no further corporate or other action is required on the part of performance by the Company to authorize of this Agreement and any Related Agreements Ancillary Agreement to which it is a party, and the consummation by the Company is of the Merger.
(b) The Company’s board of directors, at a party or to consummate the Merger or any other transactions contemplated hereby meeting duly called and therebyheld, other than the adoption of has unanimously (i) determined that this Agreement and approval of the Merger by Transactions, including the Stockholders Merger, are in the best interests of the Company who hold and the Shareholders, (aii) at least a majority approved and declared advisable this Agreement and the Transactions, including the Merger, and (iii) resolved to recommend that the Shareholders of the voting power of the outstanding shares of Company Capital Stock, voting together as a single class on an as converted into Company Common Stock basis, (b) a majority of the outstanding shares of Company Series B Preferred Stock, voting as a separate class, (c) a majority of the outstanding shares of Company Series C Preferred Stock, voting as a separate class and (d) a majority of the outstanding shares of Company Series D Preferred Stock, voting as a separate class (clauses (a) through (d), collectively, the “Requisite Stockholder Approval”). The Requisite Stockholder Approval is the only vote of the Stockholders required under applicable Legal Requirements, Delaware Law, the Charter Documents and all Contracts to which the Company or any Subsidiary is a party to legally adopt this Agreement and approve the Merger and the other transactions contemplated herebyTransactions thereby ((i), (ii), and (iii) being referred to collectively as the “Company Board Recommendation”). The Board of Directors of the Company has unanimously approved requisite stockholder vote necessary to approve this Agreement, the Certificate of Merger, the Merger and the other transactions contemplated hereby, and recommended to the Stockholders to vote in favor of adoption of this Agreement and approval of the Merger and the other transactions contemplated hereby (pursuant to the “Company Recommendation”). This Agreement terms and each conditions of the Related Agreements to which the Company Charter Documents and any Material Contract is a party have been majority of the issued and outstanding Company Stock, and no additional or separate class vote is required to approve such transactions.
(c) The Company has duly and validly executed and delivered by this Agreement and, at or prior to the Company Closing, will have duly and assuming validly executed and delivered each Ancillary Agreement to which it is a party. Assuming the due authorization, execution and delivery by Parent and the other parties hereto Merger Sub of this Agreement and theretoeach Ancillary Agreement to which each is a party, constitute this Agreement constitutes, and after the Closing, each Ancillary Agreement to which the Company is a party will constitute, the legal, valid and binding obligations obligation of the Company Company, enforceable against it the Company in accordance with their respective its terms, subject to (xi) Legal Requirements Laws of general application relating to bankruptcy, insolvency, moratorium, insolvency and the relief of debtors and enforcement of creditors’ rights in generaldebtors, and (yii) rules of law Law governing specific performance, injunctive relief, relief and other equitable remedies (the “Bankruptcy and other general principles of equityEquity Exception”).
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)