CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect the transactions contemplated by this Agreement is subject to the satisfaction or waiver by Parent (to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions: (a) The representations and warranties of the Company and the Selling Parties in this Agreement shall be true, complete and accurate in all respects (without regard to any materiality qualifiers therein) as of the date hereof and at and as of the Closing with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would have a Material Adverse Effect on the Company. (b) All of the terms, covenants and conditions to be complied with and performed by the Company or any of the Selling Parties on or prior to the Closing Date shall have been complied with or performed in all material respects. (c) Parent shall have received certificates, dated as of the Closing Date, executed on behalf of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled. (d) Parent shall have received valid and binding Consents for the Contracts set forth on Section 8.2(d) of the Disclosure Schedule. (e) The Company shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is are subject to the satisfaction satisfaction, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (i) the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the Selling Parties in this Agreement second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true, complete true and accurate correct in all respects (without regard to any materiality qualifiers therein) as of the date hereof and at as of the Closing Date as if made on and as of the Closing with the same effect Date (or, if given as though such representations and warranties had been made of a specific date, at and as of such timedate), other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such representations and warranties to be so true and correctcorrect would not, individually or in the aggregate, would have or reasonably be expected to have a Material Adverse Effect Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized officer of the Company., confirming the foregoing; and
(b) All of the termsCompany shall have performed and complied in all material respects with all obligations, covenants and conditions agreements required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties on it at or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Closing; and Parent shall have received certificates, dated as a certificate signed by an authorized officer of the Closing DateCompany, executed on behalf of confirming the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilledforegoing.
(d) Parent shall have received valid and binding Consents for the Contracts set forth on Section 8.2(d) of the Disclosure Schedule.
(e) The Company shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.
Appears in 2 contracts
Sources: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is are subject to the satisfaction satisfaction, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (and Merger Sub in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties in this Agreement shall be true, complete and accurate in all respects (without regard giving effect to any materiality qualifiers thereinlimitations as to materiality) as of the date hereof and at and as of the Closing with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only shall be true and correct as of such date or time); providedthe Closing as though made at and as of the Closing, however, that for purposes of determining except to the satisfaction of this condition, extent such representations and warranties expressly relate to an earlier date (other than the in which case such representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be truetrue and correct on and as of such earlier date), complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such the representations and warranties to be so true and correct, individually or in the aggregate, has not been, and would have a Material Adverse Effect on the Company.
(b) All of the termsnot reasonably be expected to be, covenants and conditions material to be complied with and performed by the Company or any of the Selling Parties on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Parent shall have received certificates, dated as of the Closing Date, executed on behalf of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.
(d) Parent shall have received valid and binding Consents for the Contracts set forth on Section 8.2(d) of the Disclosure Schedule.
(e) The Company shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and taken as whole;
(b) the Company shall have caused performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, and Parent shall have received copies of such corporate resolutions and other documents evidencing the performance thereof as Parent may reasonably request;
(c) there shall not have been any Material Adverse Effect since the date of this Agreement;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) Parent shall have received a certificate signed by each of the Chief Executive Officer and General Counsel of the Company, each in form and substance reasonably satisfactory to Parent, dated the Closing Date, to the effect that each of the conditions specified above in Sections 8.1(a)-(c) have been satisfied in all respects;
(f) the Company shall have obtained all consents, waivers and approvals referred to in Schedule 8.1(f), each such consent, waiver and approval being in form and substance reasonably satisfactory to Parent and not requiring as a term thereof or condition thereto any adverse condition or requirement on the conduct of business by the Company, any of its Subsidiaries, Parent or any of its subsidiaries;
(g) this Agreement, the Merger, the COI Amendment and the other transactions contemplated hereby will have been authorized, approved and consented to by (i) the Company Stockholder Approval and (ii) shares of Preferred Stock entitled to receive eighty percent (80%) of the Preferred Stock Merger Consideration, pursuant to the Aggregate Consideration Spreadsheet, and all Liens on any of their assets to written consents obtained thereby will not have been rescinded, cancelled or withdrawn and will be dischargedobtained in compliance with, including those items referenced in and are valid and effective under, Section 4.12 228 of the Disclosure ScheduleDGCL;
(h) Parent shall have received written resignations of each of the directors of the Company;
(i) each officer and director of the Company that holds capital stock of the Company shall have duly entered into, executed and delivered to Parent the release agreement, substantially in the form attached hereto as Exhibit D;
(j) the Non-Competition Agreement, substantially in the form attached hereto as Exhibit E-2, shall have been entered into by (i) each of the employees set forth on Schedule 8.1(j) under the heading “Required Non-Compete Agreements” and (ii) 90% of the total number of employees set forth on Schedule 8.1(j), and such agreements shall remain in full force and effect; provided, however, that for purposes of calculating 90%, if a Person set forth on Schedule 8.1 (j) terminates his or her employment with the Company prior to the Closing, the numerator and denominator used to calculate this percentage will both be reduced accordingly;
(k) Parent, the Escrow Agent and the Stockholder Representative shall have duly entered into, executed and delivered to the other party thereto the Escrow Agreement, substantially in the form of Exhibit B (with such changes as may be required by the Escrow Agent);
(l) the Company Plans with respect to all Company Stock Options shall have terminated and each holder of a Company Stock Option to purchase shares of capital stock of the Company shall have either exercised such option and purchased such shares of capital stock or such option shall be cancelled and null and void under its terms or the terms of the plan pursuant to which it was granted. Each outstanding warrant issued by the Company shall have been exercised or the holder thereof shall have delivered to the Company an instrument canceling such warrant in form and substance satisfactory to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” warrant shall have expired by its own terms;
(m) the respective meaning given Company shall have delivered, or caused to be delivered, to Parent certificates of good standing as of a recent date with respect to the Company issued by the Secretary of State of the State of Delaware and for each state in which the Company is qualified to do business as a foreign corporation; and
(n) The Company shall have adopted the Employee Retention Plan attached hereto as Exhibit F and shall make awards thereunder but only to the extent that such term awards do not result in a parachute payment as defined in Section 280G of the Mast Preferred Stock Purchase AgreementCode as a result of the transactions contemplated hereby.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part in Parent's sole discretion and to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (1) (i) the representations and warranties of the Company and the Selling Parties set forth in this Agreement (other than (x) clause (a) of the first sentence of Section 5.1 and Sections 5.2, 5.4(a) and 5.5(b) and (y) those other representations and warranties that address matters as of particular dates) shall be true, complete true and accurate in all respects (without regard to any materiality qualifiers therein) correct as of the date hereof and Closing Date as though then made at and as of the Closing with Date (without giving effect to materiality, Material Adverse Effect, or similar phrases in the same effect as though such representations and warranties, other than “Material Adverse Effect” in Section 5.8(a)(ii)), and (ii) the representations and warranties had been made at and of the Company set forth in this Agreement that address matters as of such time, particular dates (other than representations clause (a) of the first sentence of Section 5.1 and warranties that speak as of another specific date or time prior to the date hereof (which need only Sections 5.2, 5.4(a) and 5.5(b)) shall be true and correct as of such date dates (without giving effect to materiality, Material Adverse Effect, or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than similar phrases in the representations and warranties contained in Section 4.2warranties), 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such representations and warranties referenced in the immediately preceding clauses (i) and (ii) to be so true and correct, individually or in the aggregate, would have has not had a Material Adverse Effect on Effect; (2) the representations and warranties set forth in clause (a) of the first sentence of Section 5.1 and Sections 5.2, 5.4(a) and 5.5(b) shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date (except for representations and warranties which address matters only as of a specific date, which representatives and warranties shall continue as of the Closing Date to be true and correct in all material respects as of such specific date); and (3) Parent shall have received a certificate signed by an executive officer of the Company., dated the Closing Date, to the foregoing effect;
(b) All of the terms, Company shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date Date, and Parent shall have received a certificate signed by an executive officer of the Company, dated the Closing Date, to the foregoing effect;
(c) there shall not be any Law or Order in effect which has the effect of enjoining or otherwise prohibiting the consummation of the Merger;
(d) the waiting period (or any extension thereof) applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired (or early termination or approval, as applicable, shall have been complied with or performed in all material respects.granted);
(ce) Parent shall have received certificates, dated as a copy of the Closing Date, executed on behalf action by written consent of the Company and by each Selling Party or Stockholders evidencing the Selling Parties’ Representative on behalf Stockholder Approval in accordance with the terms of each such Selling Party certifying that Section 7.16;
(f) the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.
(d) Parent shall have received valid and binding Consents for the Contracts set forth on in Sections 7.1 and 7.2 (other than Section 8.2(d7.2(d)) of the Disclosure Schedule.
(e) The Company Epicor Merger Agreement shall have repaid been satisfied or waived in full any and all writing in accordance with the terms of the Indebtedness Epicor Merger Agreement (it being understood and agreed that the consummation of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to Epicor Merger will be discharged, including those items referenced in Section 4.12 conclusive evidence of the Disclosure Schedule, and waiver of any such conditions that shall not have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(ebeen satisfied), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.; and
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation In addition, the obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (Parent, in whole or in part, to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (i) (A) the representations and warranties of the Company and the Selling Parties set forth in Article IV of this Agreement (other than (x) Fundamental Company Representations, (y) the representations and warranties set forth in Section 4.2, and (z) those other representations and warranties that address matters as of a specified date) shall be true, complete true and accurate in all respects (without regard to any materiality qualifiers therein) correct as of the date hereof and Closing Date as though then made at and as of the Closing with Date in all respects (without giving effect to materiality, Company Material Adverse Effect, or similar phrases in the same effect as though such representations and warranties) and (B) the representations and warranties had been made at and of the Company set forth in Article IV of this Agreement that address matters as of such time, a specified date (other than the Fundamental Company Representations and the representations and warranties that speak as of another specific date or time prior to the date hereof (which need only set forth in Section 4.2) shall be true and correct as of such specified date in all respects (without giving effect to materiality, Company Material Adverse Effect, or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than similar phrases in the representations and warranties contained warranties), in Section 4.2each case, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and except to the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless extent that the failure or failures of such representations and warranties to be so true and correctcorrect has not had and would not reasonably be to have, individually or in the aggregate, would have aggregate a Company Material Adverse Effect on Effect, (ii) the Company.Fundamental Company Representations shall be true and correct in all respects as of the Closing Date as though made at and as of the Closing Date (except for Fundamental Company Representations which address matters only as of a specified date, which representations and warranties shall continue as of the Closing Date to be true and correct as of such specified date in all respects), and (iii) the representations and warranties set forth in Section 4.2 shall be true and correct in all respects except for any de minimis inaccuracy as of the Closing Date as though made at and as of the Closing Date (except for those representations and warranties which address matters only as of a specified date, which representations and warranties shall continue as of the Closing Date to be true and correct in all respects except for any de minimis inaccuracy as of such specified date in all respects);
(b) All of the terms, covenants Company shall have performed and conditions complied in all material respects with all obligations required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date shall have been complied with or performed in all material respects.Date;
(c) the Equity Purchase Agreement (i) has been executed and delivered by the holders of Company Common Stock with aggregate commitments to purchase Parent Common Stock in the amount of $62,500,000 in accordance with the terms of the Equity Purchase Agreement and (ii) the holders of Company Common Stock shall have received certificates, dated remain committed to purchase Parent Common Stock in the amount of $62,500,000 as of the Closing Date, executed on behalf Date in accordance with the terms of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.Equity Purchase Agreement;
(d) Parent shall have received valid a certificate signed by an officer of the Company, dated the Closing Date, to the effect that the conditions specified in Sections 7.2(a), 7.2(b) and binding Consents for 7.2(c) are satisfied;
(e) the Contracts Company Shareholder Agreement shall have been terminated; and
(f) the consents set forth on Section 8.2(d7.2(f) of the Company Disclosure Schedule.Schedules shall have been obtained; and
(eg) The Company the Shareholder Agreement shall have repaid in full any been executed and all of delivered by each 5% Holder that is a Company Common Shareholder immediately prior to the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets Effective Time to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase AgreementParent.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (i) the representations and warranties of the Company and the Selling Parties set forth in this Agreement qualified as to materiality shall be truetrue and correct, complete and accurate those not so qualified shall be true and correct in all respects (without regard to any materiality qualifiers therein) as of the date hereof and material respects, at and as of the Closing with Date (without regard to any supplement or amendment to the same effect Schedules pursuant to Section 8.12) as though made on the Closing Date, except to the extent such representations and warranties had been made relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date (without regard to any supplement or amendment to the Schedules pursuant to Section 8.12)), in each case except as in the aggregate would not have a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in Section 5.19(c) shall be true and correct in all respects at and as of such timethe Closing Date as though made on the Closing Date and (iii) Parent shall have received a certificate signed by an authorized officer of the Company, other than representations and warranties that speak as of another specific date or time prior dated the Closing Date, to the date hereof foregoing effect;
(which need only be true b) the Company shall have performed and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate complied in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in with all respects) shall be deemed covenants required by this Agreement to be true, complete and accurate in all respects unless the failure performed or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would have a Material Adverse Effect on the Company.
(b) All of the terms, covenants and conditions to be complied with and performed by the Company or any of the Selling Parties them on or prior to the Closing Date Date, and Parent shall have received a certificate signed by an authorized officer of the Company, dated the Closing Date, to the foregoing effect;
(c) there shall not be in effect any Law or Order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act (and any similar Law enforced by any Governmental Antitrust Entity regarding preacquisition notifications for the purpose of competition reviews) shall have expired or early termination shall have been complied with or performed in all material respects.granted;
(ce) Parent shall have received certificates, dated as duly executed and acknowledged affidavits of the Closing DateCompany, executed on behalf in form substantially identical to those attached hereto as Exhibit A in accordance with Treasury Regulation Sections 1.1445-2(c)(3), 1,897-2(g) and 1.897-2(h), certifying that each "interest" being acquired by Parent in the Company (within the meaning of Section 897(c)(1) of the Company and by each Selling Party or Code) is not a "United States real property interest" within the Selling Parties’ Representative on behalf meaning of each such Selling Party certifying that Section 897(c) of the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.Code;
(df) Parent shall have received valid and binding Consents for final payoff certificates with respect to the Contracts set forth on Section 8.2(d) of Company Debt from the Disclosure Schedule.lender parties thereof (the "Payoff Certificates"); and
(eg) The Company there shall not have repaid in full occurred any and all of the Indebtedness of the Company and its Subsidiariesevent, and shall change, occurrence or circumstance that has had or reasonably would be expected to have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreementa Material Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, on or waiver by Parent (prior to the extent the Closing may legally be effected despite the non-fulfillment Closing, of such condition) each of the following conditions:conditions (any or all of which may be waived by Parent in whole or in part):
(a) The (i) each of the Specified Representations of the Company set forth in this Agreement that are qualified by materiality shall be true and correct, (ii) each of the Specified Representations of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, and (iii) each of the other representations and warranties of the Company and the Selling Parties set forth in this Agreement shall be true, complete true and accurate correct in all respects (without regard to any materiality qualifiers thereinmateriality, Material Adverse Effect or similar phrases in the representations and warranties), in each case of clauses (i), (ii) and (iii) as of the date hereof and at and as of the Closing with the same effect as though then made (except for those representations and warranties which expressly relate to an earlier date (in which case such representations and warranties had shall have been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or timeearlier date); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6), and 5.1except, which shall be truein the case of clause (iii), complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless where the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, correct would not have a Material Adverse Effect on Effect; and Parent shall have received a certificate signed by an executive officer of the Company., dated the Closing Date, to the foregoing effect;
(b) All of the terms, Company shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date (other than Section 7.11, the breach of which will not, in and of itself, give rise to a failure of this condition to be satisfied), and Parent shall have been complied with or performed in all material respects.received a certificate signed by an executive officer of the Company, dated the Closing Date, to the foregoing effect;
(c) Parent no Law or Order shall have received certificatesbeen enacted, dated issued, adopted, entered, promulgated or enforced, as applicable, and no Legal Proceeding shall be pending, that seeks damages from the Company or any of its directors or officers in respect of the Closing Date, executed on behalf Merger or events giving rise thereto or would (i) prevent the consummation of any of the Company and by each Selling Party Transactions or the Selling Parties’ Representative performance of this Agreement, or the other documents contemplated hereby, on behalf the terms contemplated hereby and thereby, (ii) declare unlawful the Transactions or result in any of each such Selling Party certifying that the conditions specified in Section 8.2(aTransactions being rescinded following consummation, or (iii) hereof and Section 8.2(bmaterially delay the consummation of the Transactions for more than sixty (60) hereof have been fulfilled.days;
(d) Parent shall have received valid the waiting period or regulatory approval applicable to the Transactions under the HSR Act and binding Consents for the Contracts other applicable Competition Laws set forth on Section 8.2(dSchedule 8.1(d) of the Disclosure Schedule.shall have expired (or early termination shall have been granted) or been received;
(e) The Company shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters a certificate, duly completed and executed pursuant to Sections 1.897-2(h) and 1.1445-2(c) of the Treasury Regulations, certifying that the shares of capital stock of the Company are not United States real property interests within the meaning of Section 897(c) of the Code;
(or other evidencef) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” the Written Consent shall have been executed and received by Parent;
(g) the respective meaning given Escrow Agent and the Representative shall have each executed and delivered signatures to each such term in the Mast Preferred Stock Purchase AgreementAdjustment Escrow Agreement to Parent; and
(h) since the date hereof, there shall not have been any event, change, occurrence or circumstance that has had a Material Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties set forth in this Agreement qualified as to materiality shall be truetrue and correct, complete and accurate those not so qualified shall be true and correct in all respects (without regard to any materiality qualifiers therein) material respects, at and as of the date hereof and at and as of the Closing with the same effect Date as though made on the Closing Date, except to the extent such representations and warranties had been made relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct on and as of such date or timeearlier date); provided, however, that for purposes in the event of determining a breach or untruth of a representation or warranty, the satisfaction of condition set forth in this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which 8.1(a) shall be true, complete deemed satisfied unless the effect of all such breaches or untruths taken together result in a Material Adverse Effect;
(b) the Company shall have performed and accurate complied in all material respects with all obligations and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed agreements required by this Agreement to be true, complete and accurate in all respects unless the failure performed or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would have a Material Adverse Effect on the Company.
(b) All of the terms, covenants and conditions to be complied with and performed by the Company or any of the Selling Parties them on or prior to the Closing Date Date;
(c) there shall not be in effect any Law or Order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act and other Competition Laws shall have expired or early termination shall have been complied with or performed in all material respects.granted;
(ce) since the date hereof, there shall not have been any change, event or development that has had, or would reasonably be expected to have, a Material Adverse Effect;
(f) Parent shall have received certificates, dated as each of the Closing Dateconsents and approvals, executed on behalf and copies of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of notices, described in Schedule 8.1(f), each such Selling Party certifying consent, approval or notice (i) shall be in form and substance reasonably satisfactory to Parent, (ii) shall not be subject to the satisfaction of any condition that the conditions specified has not been satisfied or waived and (iii) shall be in Section 8.2(a) hereof full force and Section 8.2(b) hereof have been fulfilled.effect;
(dg) Parent shall have received valid and binding Consents for pay-off letters in customary form (including authorizations to file UCC-3s reflecting the Contracts set forth on Section 8.2(dtermination of security interests in the underlying security) from each of the Disclosure Schedule.lenders described in Schedule 1.1(b);
(eh) The Company shall have repaid in full any and all the Employment Agreement dated as of the Indebtedness of date hereof between the Company and its Subsidiaries, ▇▇▇ ▇. ▇▇▇▇▇▇ shall be in full force and effect;
(i) the Amended and Restated Limited Liability Company Agreement of Parent in substantially the form attached hereto as Exhibit B (the “New Parent LLC Agreement”) shall have caused any been executed and all Liens on delivered by each of the Rollover Holders;
(j) the Rollover Transaction shall have been effected; and
(k) Parent shall have received evidence that the Company and any of their assets its Subsidiaries have terminated any tax sharing agreement to be dischargedwhich they were a party, including those items referenced in Section 4.12 such that the Company and any of its Subsidiaries will not have any obligations under such agreements after the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase AgreementClosing.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated Merger and to take the other actions required to be taken by this Agreement is Parent and Merger Sub at the Closing are subject to the satisfaction or waiver by Parent (to the extent the Closing may legally be effected despite the non-fulfillment of such condition) each of the following conditions:conditions (any of which may be waived by Parent, in whole or in part, in accordance with Section 12.13):
(a) The representations and warranties of the Company and the Selling Parties in this Agreement shall be true, complete and accurate in all respects (without regard to any materiality qualifiers therein) as of the date hereof and at and as of the Closing with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained made by the Company in Section 4.2, 4.5, 4.6, 4 and 5.1, which each Selling Shareholder in Section 5 and in each other Transactional Agreement shall be true, complete have been true and accurate in all material respects as of the date made and as of the Closing Date as though made on and as of the Closing Date (other than those representations and warranties contained that are made as of a specified date, in Section 4.13(c) which case such representations and warranties shall be true, complete true and accurate in all respects) shall be deemed to be true, complete and accurate in all material respects unless the failure or failures as of such representations and warranties to be so true and correct, individually or in the aggregate, would have a Material Adverse Effect on the Company.specified date);
(b) All of the termsall covenants, covenants agreements and conditions contained in this Agreement or in any other Transactional Agreement to be complied with and performed observed by the Company or any of and the Selling Parties Shareholders on or prior to the Closing Date shall have been performed or complied with or performed in all material respects.;
(c) the following documents shall be delivered to Parent:
(i) the escrow agreement in substantially the form attached hereto as Exhibit B (the "Escrow Agreement"), duly executed by each Selling Shareholder;
(ii) a restricted stock purchase agreement in substantially the form attached hereto as Exhibit C (collectively, the "Restricted Stock Agreements"), duly executed by each Key Employee;
(iii) an employment agreement and proprietary information and invention agreement in substantially the form attached hereto as Exhibit D (collectively, the "Employment Agreements"), duly executed by each Key Employee;
(iv) an employee confidentiality and nondisclosure agreement in the form provided to counsel to Parent shall have received certificates(collectively, "Nondisclosure Agreements"), duly executed by the Company and each current and former director, officer, employee, consultant and contractor of the Company;
(v) the legal opinion of Carr▇▇▇, ▇▇rd▇▇▇ & ▇cDo▇▇▇▇▇ ▇▇▇, counsel to the Selling Shareholders and the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit E;
(vi) a certificate (the "Selling Shareholders Closing Certificate" and the "Company Closing Certificate," respectively) duly executed by the Selling Shareholders and a senior executive officer of the Company, respectively, dated as of the Closing Date, executed on behalf and certifying to the satisfaction of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Sections 4.1(a) and (b);
(vii) the written resignations of the members of the Company Board; and
(viii) such other documents reasonably satisfactory to Parent as Parent may reasonably request in good faith for the purpose of (A) evidencing the accuracy of any representation or warranty made by the Company or any Selling Shareholder, (B) evidencing the compliance by the Company and each Selling Shareholder with, or the performance by the Company and each Selling Shareholder of, any covenant or obligation set forth in this Agreement or any other Transactional Agreement, (C) evidencing the satisfaction of the conditions set forth in this Section 8.2(a3.1 or (D) hereof otherwise facilitating the consummation of the Merger and Section 8.2(b) hereof have been fulfilled.the Related Transactions;
(d) Parent shall have received valid all corporate and binding Consents for other proceedings required to be taken on the Contracts set forth on Section 8.2(d) part of the Disclosure Schedule.Company or any Selling Shareholder in connection with this Agreement, the other Transactional Agreements, the Merger or the Related Transactions, and all documents incident thereto, shall be reasonably satisfactory in form and in substance to Parent and its counsel;
(e) The Company shall have repaid in full any and all each of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced Consents identified in Section 4.12 Part 4.5 of the Disclosure Schedule, if any, shall have been obtained and shall be in full force and effect;
(f) except as described in the Disclosure Schedule, there shall have delivered to Parent payoff letters been no material adverse change in the Company's business, financial condition, assets, liabilities or results of operations (taken as a whole) since December 31, 1999 (a "Material Adverse Change");
(g) except as described in the Disclosure Schedule, there shall not have been commenced or expressly threatened against Parent, the Company or any of their affiliates any Proceeding (i) involving any challenge to, or seeking damages or other evidencerelief in connection with, the Merger or any of the Related Transactions, or (ii) evidencing that is likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Merger or any of the Related Transactions or have a material adverse effect on the Company's business, financial condition, assets, liabilities or results of operations (taken as a whole) (a "Material Adverse Effect");
(h) no Person shall have made or expressly threatened any claim asserting that such payoff Person (i) may be the holder or the beneficial owner or, or may have the right to acquire or to obtain beneficial ownership of, any capital stock or other securities, or securities convertible into capital stock, of the Company, or (ii) may be entitled to all or any portion of the Total Merger Consideration; and
(i) consummation of the Merger and discharge. Solely for purposes any other Related Transaction, and performance by the Company and the Selling Shareholders of this Section 8.2(etheir other obligations hereunder and under any other Transactional Agreement, shall not, directly or indirectly (with or without notice or lapse of time), “Indebtedness” and “Liens” shall have contravene or conflict with or result in a violation of, or cause Parent or the respective meaning given Company, or any Person affiliated with Parent or the Company, to each such term in the Mast Preferred Stock Purchase Agreementsuffer any material adverse consequence under, (i) any applicable legal requirement or Order, or (ii) any legal requirement or Order that has been proposed by or before any Governmental Body.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is are subject to the satisfaction satisfaction, as of the Closing, of each of the following conditions (any or waiver all of which may be waived by Parent (in writing in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (i) the representations and warranties of the Company and the Selling Parties contained in this Agreement shall be true, complete and accurate in all respects Article V (without regard to any materiality qualifiers therein) as of the date hereof and at and as of the Closing with the same effect as though such representations and warranties had been made at and as of such time, other than representations those in Sections 5.2, 5.4, 5.5(a) and warranties that speak as 5.8(i)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (other than, for the avoidance of another specific date or time prior doubt, the reference to the date hereof (which need only “Material Adverse Effect” in Section 5.8(ii)), shall be true and correct as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date or timedate); provided, however, except to the extent that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on Effect, (ii) the Company.
(b) All representations and warranties of the termsCompany contained in Sections 5.2, covenants 5.4 and conditions to 5.5(a) shall be complied with true and performed by the Company or any correct in all respects as of the Selling Parties on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Parent shall have received certificates, dated as if made on and as of the Closing Date, executed on behalf except with respect to Section 5.4 for de minimis inaccuracies, and (iii) the representations and warranties of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified contained in Section 8.2(a5.8(i) hereof shall be true and Section 8.2(bcorrect in all material respects as of the Closing Date as if made on and as of the Closing Date; and Parent shall have received an officer’s certificate signed by an authorized officer of the Company confirming the foregoing;
(b) hereof the Company shall have been fulfilled.performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing; and Parent shall have received an officer’s certificate signed by an authorized officer of the Company confirming the foregoing;
(c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction, or any applicable Law, restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) this Agreement and the Merger shall be been approved and adopted, pursuant to the Stockholder Consent, in accordance with applicable Law and the Company’s certificate of incorporation and by-laws;
(e) the Company shall have delivered a duly executed certificate certifying that the interest in the Company is not a United States real property interest (as defined in Section 897(c)(1) of the Code) in the form and manner that complies with Section 1445 of the Code and the Treasury Regulations promulgated thereunder and a notice in compliance with Treasury Regulations Section 1.897-2(h)(2); provided, that the sole right of Parent and Merger Sub if the Company fails to provide such certificate and notice, shall be to make an appropriate withholding under Sections 897 and 1445 of the Code;
(f) the Company shall have provided to Parent the executed payoff letters required to be provided in accordance with Section 7.12 and such payoff letters shall be in full force and effect subject only to Parent’s delivery of funds as specified therein at the Closing;
(g) (i) in the event of the Notes Redemption pursuant to Section 7.13(a), the Redemption Date (as defined in the Indenture) for the Notes shall be the Closing Date if Parent deposits with the Trustee for the Notes on the Closing Date the amount required to be deposited under Section 3.05 of the Indenture, or (ii) in the event of the Satisfaction and Discharge pursuant to Section 7.13(b), the Notes shall be capable of being satisfied and discharged on the Closing Date pursuant to Section 8.01 of the Indenture solely upon the deposit of U.S. Legal Tender or U.S. Government Obligations (as defined in the Indenture) as directed by the Trustee in accordance with Section 3.3 and Parent providing the written confirmation contemplated by the proviso to Section 7.13 to enable the Company to make the deliveries contemplated by Section 7.13;
(h) the Company and the Parent shall have received valid and binding Consents for good faith assurance from the Contracts set forth on Section 8.2(d) Staff of the Disclosure Schedule.SEC (which has not been withdrawn) reasonably acceptable to Parent that the Staff of the SEC will, upon the completion of the Notes Redemption or Satisfaction and Discharge, as the case may be, in accordance with Section 7.13, grant no-action relief or provide other assurance to the effect that the Company shall, immediately after the filing of a Form 15, cease to have any further reporting obligations under the Exchange Act;
(ei) The Company the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and expired or early termination shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of been granted; and
(j) since the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes date of this Section 8.2(e)Agreement, “Indebtedness” and “Liens” there shall not have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreementoccurred a Material Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties set forth in this Agreement Agreement, which representations and warranties shall be truedeemed for purposes of this Section 8.1(a) not to include any qualification or limitation with respect to materiality (whether by reference to "Material Adverse Effect" or otherwise), complete shall be true and accurate in all respects (without regard to any materiality qualifiers therein) as of the date hereof and correct at and as of the Closing except (with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior respect to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained of the Company set forth in Section 4.2, 4.5, 4.6, this Agreement other than in Sections 5.2 and 5.1, which shall be true, complete and accurate in all material respects and 5.4) where the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed failure thereof to be true, complete and accurate in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Effect, with the same effect as though such representations and warranties were made at and as of the Closing, and Parent shall have received a certificate signed by the Chief Executive Officer of the Company., dated the Closing Date, to the foregoing effect;
(b) All of the terms, Company shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date Date, and Parent shall have been complied with or performed in all material respects.received a certificate signed by the Chief Executive Officer of the Company, dated the Closing Date, to the foregoing effect;
(c) Parent there shall have received certificatesnot be in effect any Law or Order restraining, dated as enjoining or otherwise prohibiting the consummation of the Closing Date, executed on behalf of the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.transactions contemplated hereby;
(d) Parent the consents and/or approvals of Governmental Bodies and other Persons listed on Schedule 8.1(d) shall have received valid been obtained and binding Consents for the Contracts set forth on Section 8.2(d) evidence of the Disclosure Schedule.such consents and/or approvals shall have been made available to Parent; and
(e) The Company the waiting period or required approval applicable to the transactions contemplated by this Agreement under the HSR Act and the other applicable Competition Laws set forth on Schedule 8.1(e) shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and expired (or early termination shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (been granted) or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreementbeen received.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger ▇▇▇▇▇▇ Sub to effect consummate the transactions contemplated by this Agreement Transactions is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties set forth in this Agreement Article IV that are qualified as to materiality or Company Material Adverse Effect shall be true, complete true and accurate correct in all respects (without regard to any materiality qualifiers therein) respects, and those not so qualified shall be true and correct in all material respects, in each case both as of the date hereof Execution Date and as of the Closing as though made at and as of the Closing (except with respect to representations and warranties of the same effect Company in Article IV that address matters only as though of an earlier date, in which case such representations and warranties had been made at qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, on and as of such time, other than representations earlier date);
(b) the Company shall have performed and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate complied in all material respects with all obligations and the representations and warranties contained agreements required in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed this Agreement to be true, complete and accurate in all respects unless the failure performed or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would have a Material Adverse Effect on the Company.
(b) All of the terms, covenants and conditions to be complied with and performed by the Company or any of the Selling Parties them on or prior to the Closing Date shall have been complied with or performed in all material respects.Date;
(c) there shall not have occurred a Company Material Adverse Effect since the Balance Sheet Date that is pending or continuing;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions;
(e) Parent shall have received certificatesa certificate signed by the Chief Executive Officer of the Company, each in form and substance reasonably satisfactory to Parent, dated as of the Closing Date, to the effect that each of the conditions specified above in Sections 7.1(a) and (b) have been satisfied in all respects;
(f) the Company shall have obtained or made any other Consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made by it in connection with the execution and delivery of this Agreement or the consummation of the Transactions;
(g) the Company shall have obtained those Consents listed on Schedule 7.1(g) that the Company is required to obtain as indicated on Schedule 7.1(g), each such Consent to be in a form reasonably satisfactory to Parent and copies thereof shall have been delivered to Parent;
(h) the Company shall have received (and provided Parent with copies of) resignation letters executed on behalf and delivered by each of the officers and directors of the Company and by prior to the Effective Time, in each Selling Party or case effective as of the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.Effective Time;
(di) Parent shall have received valid received:
(i) certificates of good standing dated not more than ten (10) Business Days prior to the Closing Date with respect to the Company, issued by the Secretary of State of the State of Delaware and binding Consents for each state in which the Company is qualified to do business as a foreign corporation;
(ii) affidavits in a form reasonably acceptable to the Parent that the Company is not a U.S. real property holding corporation as defined in Section 897, and that no withholding is required under Section 1445 of the Code;
(iii) copies of the Company Board Approval, certified by the Secretary of the Company, as to the authorization of this Agreement and the Transactions;
(iv) copies of the Company Board Approval, certified by the Secretary of the Company, as to the termination of the 401(k) Plan of the Company;
(v) copies of each of the Initial Payment Allocation Schedule;
(vi) estimates of the Estimated Closing Date Net Free Cash Amount and the Estimated Unpaid Company Transaction Expenses as required by Section 3.7;
(vii) copies of payment and satisfaction in full of any intercompany Indebtedness (including Indebtedness between the Company and any of its Subsidiaries) in a form reasonably satisfactory to Parent;
(viii) copies of the Merger Certificate executed by the Company; and
(ix) such other customary documents as Parent shall reasonably request in good faith for the Contracts set forth purpose of facilitating the consummation of the Merger and the other Transactions; and
(j) the Company Board Approval shall be in full force and effect. Stockholders holding at least (i) a majority of the outstanding shares of Company Preferred Stock (calculated on Section 8.2(dan as-converted basis) and (ii) a majority of the outstanding shares of Company Common Stock shall have approved this Agreement, the Merger and the other Transactions and such approval shall be in full force and effect. Stockholders holding not more than five percent (5%) of the Disclosure Schedule.
outstanding shares of Company Capital Stock (ecalculated on an as-converted basis) The Company shall have repaid in full any and all of exercised, or have continuing rights to exercise, appraisal or dissenters’ rights under the Indebtedness of DGCL with respect to the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase AgreementTransactions.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement Merger is subject to the satisfaction at or waiver by Parent (prior to the extent Closing of each of the conditions set forth below; provided, however, that, notwithstanding the failure of any one or more of such conditions, Parent and Merger Sub may nevertheless proceed with the Closing may legally be effected despite the non-fulfillment without satisfaction, in whole or in part, of any one or more of such condition) of the following conditions:
(ai) The Each of the representations and warranties of the Company and the Selling Parties in this Agreement contained herein shall be true, complete true and accurate correct in all respects (without regard to respects, disregarding for these purposes any qualification or exception for materiality qualifiers therein) as of the date hereof and at or Material Adverse Effect, on and as of the Closing Date with the same force and effect as though such representations and warranties the same had been made at on and as of such time, other than the Closing Date (except that representations and warranties that speak are made as of another a specific date or time prior to the date hereof (which need only be true and correct in all respects only as of such date or timedate); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such representations and warranties to be so true and correctcorrect does not have, individually or in the aggregate, would have a Material Adverse Effect Effect; provided, that the representations and warranties of the Company contained in Section 3.4(c), Section 3.19 and Section 3.20(d) shall be true and correct in all respects and (ii) each of Parent's Subsidiaries that is subject to Rule 15c3-1 under the Exchange Act as of the close of business on the Companythird Business Day prior to the Closing Date has Required Net Capital. In the event Section 3.17
(a) is untrue and such inaccuracy results in a greater than 10% reduction in either (i) the percentage of outstanding Shares subject to the Company Voting Agreement and the Datek Voting Agreement, taken together, or (ii) the percentage of outstanding shares of Parent Common Stock subject to the Stockholders Agreement and the Datek Stockholders Agreement, taken together, in each case the Company shall have cured such breach by procuring the agreement of additional holders of Shares to be bound by the terms of the Company Voting Agreement and the Stockholders Agreement such that (a) the total percentage of outstanding Shares subject to the Company Voting Agreement and the Datek Voting Agreement, taken together, is no less than 90% of the percentage of such Shares subject thereto on the date hereof and (b) the total percentage of outstanding shares of Parent Common Stock subject to the Stockholders Agreement and the Datek Stockholders Agreement, taken together, is no less than 90% of the percentage of such shares of Parent Common Stock subject thereto on the date hereof.
(b) All of the terms, covenants and conditions agreements required by this Agreement to be have been performed and complied with and performed by the Company or any of the Selling Parties on or prior to the Closing Date and its Subsidiaries shall have been performed and complied with or performed in all material respectsrespects prior to or on the Closing Date.
(c) Parent No preliminary or permanent injunction or other Judgment of any court restraining or prohibiting the consummation of the transactions contemplated hereby shall be in effect. No material Proceedings shall have received certificatesbeen instituted or threatened by (i) any Authority seeking to prohibit, dated as restrict or delay, declare illegal or to enjoin or obtain Damages from Parent in respect of, the consummation of the Closing Datetransactions contemplated hereby or by the Related Agreements or (ii) any other Person which, executed on behalf in the case of this clause (ii), would be reasonably likely to cause a Material Adverse Effect with respect to the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilledParent, taken as a whole.
(d) Parent shall have received valid and binding Consents (i) the Required Parent Vote with respect to the Parent Charter Amendment and, if applicable, the Parent Share Issuance, (ii) the UK Treasury Consent, if required, (iii) all consents, approvals or orders of any Authority or Self-Regulatory Organization, (iv) all consents, approvals or orders of any other third party the granting of which is required for the Contracts set forth on Section 8.2(d) consummation of the Disclosure Scheduletransactions contemplated herein or for the Parent or the Company and their respective Subsidiaries to conduct their business after the Closing Date in substantially the same manner as currently conducted (except, in the case of clause (iii) or (iv), to the extent failure to have received any such consent, approval or order would not, individually or in the aggregate, be material to the business of the Company and Parent taken as a whole), and (v) all waiting periods the expiration of which is required under applicable Legal Requirements, including under the HSR Act, shall have expired or been terminated.
(e) The Parent shall receive (i) a certificate, dated the Closing Date, from the Company shall have repaid as to its compliance with the conditions set forth in full any Sections 5.1(a) and all of the Indebtedness 5.1(b) executed by a duly authorized officer of the Company and its (ii) a certificate from the chief financial officer of the Company computing the Net Capital as of the close of business on the third Business Day prior to Closing Date of each of the Company Broker-Dealer Subsidiaries, and .
(f) Each of the other Related Agreements to be entered into after the date hereof shall have caused any been duly executed and all Liens on delivered by each of the parties thereto (other than Parent, Merger Sub, or any of their assets controlled Affiliates) and each of the Related Agreements shall be in full force and effect and shall constitute the legal, valid and binding obligations of the parties thereto, enforceable against such parties in accordance with their terms. Each of the representations and warranties of the parties thereto (other than Parent, Merger Sub, or any of their controlled Affiliates) contained therein shall be true and correct in all respects, disregarding for these purposes any qualification or exception for materiality or Material Adverse Effect, on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date (except that representations and warranties that are made as of a specific date need be true and correct in all respects only as of such date), except where the failure of such representations and warranties to be dischargedso true and correct does not have, including those items referenced individually or in Section 4.12 the aggregate, a Material Adverse Effect. All of the Disclosure Schedulecovenants and agreements required by the Company Voting Agreement and the Datek Voting Agreement to have been performed and complied with by the Company, the Voting Holders and Datek shall have delivered been performed and complied with in all material respects prior to or on the Closing Date and Parent payoff letters (or other evidence) evidencing such payoff shall receive a certificate, dated the Closing Date, from each Voting Holder and discharge. Solely for purposes of this Section 8.2(e)Datek, “Indebtedness” as to its compliance with its covenants and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreementagreements thereunder.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent (in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The representations and warranties of the Company and the Selling Parties contained in this Agreement shall be true, complete true and accurate correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all respects (without regard to material respects,” “in any materiality qualifiers thereinmaterial respect,” “material” or “materially”) as of the date hereof and Closing as though made at and as of the Closing with (except to the same effect extent expressly made as though such representations and warranties had been made at and of an earlier date, in which case as of such timeearlier date), other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of any such representations and warranties to be so true and correctcorrect would not reasonably be expected to have, individually or in the aggregate, would have a Material Adverse Effect on Effect, and Parent shall have received a certificate signed by an authorized officer of the Company., dated the Closing Date, to the foregoing effect;
(b) All the representations and warranties of the termsShareholders contained in this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material” or “materially”) as of the Closing as though made at and as of the Closing (except to the extent expressly made as of another date, covenants in which case as of such other date), except where the failure of any such representations and conditions warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and Parent shall have received a certificate signed by the Shareholders’ Representative, dated the Closing Date, to the foregoing effect;
(c) the Company shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Date, and Parent shall have received certificatesa certificate signed by an authorized officer of the Company, dated as of the Closing Date, executed on behalf of to the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.foregoing effect;
(d) each of the Shareholders shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing Date, and Parent shall have received valid and binding Consents for a certificate signed by the Contracts set forth on Section 8.2(d) of Shareholders’ Representative, dated the Disclosure Schedule.Closing Date, to the foregoing effect;
(e) The Company there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; it being agreed that the parties hereto shall promptly appeal any adverse determination which is not nonappealable (and pursue such appeal with reasonable diligence); provided, however, that this condition shall not be available to a party if such Order was primarily due to the failure of such party to perform any of its obligations under this Agreement;
(f) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have repaid in full any expired or early termination shall have been granted, and all the Parties hereto shall have obtained approval under Section 39.158 of PURA and authorization under Section 203 of the Indebtedness of Federal Power Act;
(g) the Company and its Subsidiaries, and Subsidiaries shall not have caused any and all Liens on any suffered a Material Adverse Effect since the date of their assets to be discharged, including those items referenced in Section 4.12 this Agreement; and
(h) each of the Disclosure Schedule, and Shareholders shall have delivered provide to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes a certificate satisfying the requirements of this Treasury Regulation Section 8.2(e1.1445-2(b), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation respective obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent (and Merger Sub in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties in this Agreement shall be true, complete true and accurate correct in all respects (determined without regard to any materiality qualifiers therein) or Material Adverse Effect qualifications contained in any representation or warranty), in each case, as of the date hereof of this Agreement and as of the Closing as though made at and as of the Closing with Closing, except to the same effect as though extent such representations and warranties had been made at expressly speak as of an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such timeearlier date), other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of except for such date or time); providedinaccuracies which, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect on the Company.
(b) All of the termsEffect, covenants and conditions to be complied with and performed by the Company or any of the Selling Parties on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Parent shall have received certificatesa certificate signed by an authorized officer of the Company in his capacity as such, dated as of the Closing Date, executed to the foregoing effect;
(b) the Company shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on behalf or prior to the Closing Date, and Parent shall have received a certificate signed by an authorized officer of the Company and by each Selling Party or in his capacity as such, dated as of the Selling Parties’ Representative on behalf of each such Selling Party certifying that Closing Date, to the conditions specified in Section 8.2(aforegoing effect;
(c) from the date hereof and Section 8.2(b) hereof prior to Closing, there shall not have been fulfilled.or occurred, and in either case, be continuing, any event, change, occurrence, circumstance or development that, individually or in the aggregate with any such events, changes, occurrences, circumstances or developments, has had or would reasonably be expected to have a Material Adverse Effect;
(d) there shall not be in effect any order, judgment or decree by a Governmental Entity of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) the Company shall have obtained (i) the Company Written Consent and (ii) the other consents set forth on Schedule 7.1(e), and shall have delivered copies of the same to Parent;
(f) the Company shall have delivered, or caused to be delivered, to Parent such items set forth in Section 3.2;
(g) Parent shall have received valid the proceeds from the debt financing contemplated by the Debt Commitment Letter;
(h) the waiting period (and binding Consents for any extension thereof) under the Contracts set forth on Section 8.2(d) HSR Act applicable to the consummation of the Disclosure Schedule.Merger (and, if applicable, the transactions contemplated by the Backstop Securities Agreement) shall have expired or been terminated; and
(ei) The Company Any of the following: (I) Parent shall have repaid in full any received an amount of proceeds from the consummation of the Offering so that there is not a Parent Cash Shortfall after giving effect to such proceeds, (II) Parent shall have received proceeds from the consummation of the Offering and there is a Parent Cash Shortfall after giving effect to such proceeds and all of the Indebtedness conditions to the obligations of Parent contained in Section 5.2 of the Company and its Subsidiaries, and Backstop Securities Agreement shall have caused any been satisfied or waived by Parent, or (III) on or after the Backstop Date, the Offering has not been consummated and all Liens on any of their assets the conditions to be discharged, including those items referenced the obligations of Parent contained in Section 4.12 5.2 of the Disclosure Schedule, and Backstop Securities Agreement shall have delivered to Parent payoff letters (been satisfied or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreementwaived by Parent.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent (in whole or in part in Parent’s sole discretion and to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (1) (i) the representations and warranties of the Company and the Selling Parties set forth in this Agreement (other than (x) clause (a) of the first sentence of Section 5.1 and Sections 5.2, 5.4(a) and 5.5(b) and (y) those other representations and warranties that address matters as of particular dates) shall be true, complete true and accurate in all respects (without regard to any materiality qualifiers therein) correct as of the date hereof and Closing Date as though then made at and as of the Closing with Date (without giving effect to materiality, Material Adverse Effect, or similar phrases in the same effect as though such representations and warranties, other than “Material Adverse Effect” in Section 5.8(a)(ii)), and (ii) the representations and warranties had been made at and of the Company set forth in this Agreement that address matters as of such time, particular dates (other than representations clause (a) of the first sentence of Section 5.1 and warranties that speak as of another specific date or time prior to the date hereof (which need only Sections 5.2, 5.4(a) and 5.5(b)) shall be true and correct as of such date dates (without giving effect to materiality, Material Adverse Effect, or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than similar phrases in the representations and warranties contained in Section 4.2warranties), 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such representations and warranties referenced in the immediately preceding clauses (i) and (ii) to be so true and correct, individually or in the aggregate, would have has not had a Material Adverse Effect on Effect; (2) the representations and warranties set forth in clause (a) of the first sentence of Section 5.1 and Sections 5.2, 5.4(a) and 5.5(b) shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date (except for representations and warranties which address matters only as of a specific date, which representatives and warranties shall continue as of the Closing Date to be true and correct in all material respects as of such specific date); and (3) Parent shall have received a certificate signed by an executive officer of the Company., dated the Closing Date, to the foregoing effect;
(b) All of the terms, Company shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date Date, and Parent shall have received a certificate signed by an executive officer of the Company, dated the Closing Date, to the foregoing effect;
(c) there shall not be any Law or Order in effect which has the effect of enjoining or otherwise prohibiting the consummation of the Merger;
(d) the waiting period (or any extension thereof) applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired (or early termination or approval, as applicable, shall have been complied with or performed in all material respects.granted);
(ce) Parent shall have received certificates, dated as a copy of the Closing Date, executed on behalf action by written consent of the Company and by each Selling Party or Stockholders evidencing the Selling Parties’ Representative on behalf Stockholder Approval in accordance with the terms of each such Selling Party certifying that Section 7.16;
(f) the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.
(d) Parent shall have received valid and binding Consents for the Contracts set forth on in Sections 7.1 and 7.2 (other than Section 8.2(d7.2(d)) of the Disclosure Schedule.
(e) The Company Epicor Merger Agreement shall have repaid been satisfied or waived in full any and all writing in accordance with the terms of the Indebtedness Epicor Merger Agreement (it being understood and agreed that the consummation of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to Epicor Merger will be discharged, including those items referenced in Section 4.12 conclusive evidence of the Disclosure Schedule, and waiver of any such conditions that shall not have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(ebeen satisfied), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.; and
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is subject to the satisfaction fulfillment, on or waiver prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent (and Merger Sub in whole or in part to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The the representations and warranties of the Company and the Selling Parties in this Agreement Shareholder shall be true, complete and accurate in all respects (without regard to any materiality qualifiers therein) as of the date hereof and at and as of the Closing with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, however, the Closing Date (except that for purposes of determining to the satisfaction of this condition, extent such representations and warranties (other than the representations and warranties contained in Section 4.2expressly speak as of an earlier date, 4.5, 4.6, and 5.1, which they shall be true, complete true and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless the failure or failures correct only as of such representations and warranties earlier date), except to be so true and correctthe extent that breaches thereof, individually or in the aggregate, have not had, and would have not reasonably be expected to have, a Material Adverse Effect on the Company.Effect;
(b) All of the terms, covenants Company shall have performed and conditions complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties them on or prior to the Closing Date Date;
(c) since the date hereof, there shall not have been or occurred any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or would reasonably be expected to have a Material Adverse Effect;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company, in form and substance reasonably satisfactory to Parent, dated the Closing Date, to the effect that each of the conditions specified above in Sections 6.1(a)-(d) have been satisfied in all respects;
(f) (i) to the extent applicable, the waiting period under the HSR Act shall have expired or early termination shall have been complied granted and the Company shall have obtained or made any other consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made by it in connection with the execution and delivery of this Agreement or performed the consummation of the transactions contemplated hereby and (ii) the Company shall have obtained all consents, waivers and approvals required for the consummation of the transactions herein in all material respects.a form reasonably satisfactory to Parent;
(cg) Parent shall have received certificatesthe following items:
(i) copies of Board and shareholder resolutions, certified by the Secretary of the Company, as to the authorization of this Agreement and all of the transactions contemplated hereby;
(ii) a copy of an Assignment and Assumption Agreement pursuant to which certain extrusion equipment is transferred to the Company, duly executed by ▇▇▇▇▇▇▇ Properties, LLC in a form reasonably acceptable to Parent (“Assignment and Assumption Agreement);
(iii) a copy of the Employment Agreement, the form of which is attached hereto as Exhibit C (the “Employment Agreement”) duly executed by Shareholder;
(iv) copies of the resignations of the officers and directors of the Company;
(v) certificates of good standing dated not more than ten (10) Business Days prior to the Closing Date with respect to the Company issued by the Secretary of State of the State of Minnesota and for each state in which the Company is qualified to do business as a foreign corporation;
(vi) an opinion, dated as of the Closing Date, from counsel for the Company and Shareholder, substantially in the form attached hereto as Exhibit D provided, Parent shall pay up to $5000.00 of the reasonable cost of the Company in obtaining the opinion;
(vii) a copy of the Real Estate Lease, the form of which is attached hereto as Exhibit E, duly executed on behalf by ▇▇▇▇▇▇▇ Properties, LLC;
(viii) all necessary consents, if any, with respect to Material Contracts shall have been obtained and Parent shall have received satisfactory evidence thereof;
(ix) a certification of non-foreign status executed by Shareholder, meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2);
(x) trademark and patent assignments for the Company’s trademark and patent rights;
(xi) releases from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ in form and substance reasonably satisfactory to Parent;
(xii) such certificates from the officers of the Company and the Shareholder as are reasonably required by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying Parent; and
(xiii) evidence that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have ▇▇▇▇▇▇ Bank UCC filing # ▇▇▇▇▇▇▇ has been fulfilled.terminated; and
(dh) Audited Financial Statements. Parent shall have received valid and binding Consents audited financial statements for the Contracts set forth on Section 8.2(d) Company, prepared by Cross, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP which satisfy the form 8-K filing requirements applicable to the transactions contemplated by this Agreement of the Disclosure Schedule.
(e) The Company shall have repaid Securities and Exchange Commission and which do not materially differ from the Financial Statements and Balance Sheet; provided, however, that in full determining whether such audited financial statements materially differ from the Financial Statements and the Balance Sheet, neither the lack footnotes nor any and all of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term normal year-end adjustments in the Mast Preferred Stock Purchase AgreementFinancial Statements and Balance Sheet shall be considered.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligation obligations of Parent and Merger Sub to effect consummate the transactions contemplated by this Agreement is Merger are subject to the satisfaction fulfillment, at or waiver prior to the Closing, of each of the following conditions (any or all of which may be waived by Parent (Parent, in whole or in part, to the extent the Closing may legally be effected despite the non-fulfillment of such condition) of the following conditions:permitted by applicable Law):
(a) The (i) (A) the representations and warranties of the Company set forth in ARTICLE IV (other than (x) Sections 4.2, 4.4(a), and the Selling Parties in this Agreement 4.8(b) and (y) those other representations and warranties that address matters as of a specified date) shall be true, complete true and accurate in all respects (without regard to any materiality qualifiers therein) correct as of the date hereof and Closing as though then made at and as of the Closing with (without giving effect to materiality, Material Adverse Effect, or similar phrases in the same effect as though such representations and warranties), and (B) the representations and warranties had been made at and of the Company set forth in ARTICLE IV that address matters as of such time, a specified date (other than representations Sections 4.2, 4.4(a), and warranties that speak as of another specific date or time prior to the date hereof (which need only 4.8(b)) shall be true and correct as of such specified date (without giving effect to materiality, Material Adverse Effect, or time); provided, however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than similar phrases in the representations and warranties contained in Section 4.2warranties), 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless except where the failure or failures of such representations and warranties referenced in the immediately preceding clauses (A) and (B) to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect Effect, (ii) the representations and warranties set forth in Sections 4.2 and 4.4(a) shall be true and correct in all material respects as of the Closing as though made at and as of the Closing (except for (a) with respect to Section 4.4(a), revisions set forth on the Company.Estimated Closing Statement and included in the determination of the Per Share Portion and (b) representations and warranties set forth in Sections 4.2 and 4.4(a) which address matters only as of a specified date, which representations and warranties shall continue as of the Closing to be true and correct as of such specified date in all material respects and (iii) the representations and warranties set forth in Section 4.8(b) shall be true and correct in all respects as of the Closing;
(b) All of the terms, Company shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with and performed by the Company or any of the Selling Parties it on or prior to the Closing Date shall have been complied with or performed in all material respects.Closing;
(c) Parent shall have received certificatesa certificate signed by an officer of the Company, dated as of the Closing Date, executed on behalf of to the Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying effect that the conditions specified in Section 8.2(a7.1(a) hereof and Section 8.2(b7.1(b) hereof have been fulfilled.are satisfied;
(d) no Governmental Body having competent jurisdiction over the Company, Parent or Merger Sub shall have enacted, issued, promulgated, enforced or entered any Law then in effect or issued an Order, in each case, prohibiting consummation of the Merger on the terms contemplated by this Agreement; provided, that any Law or Order with respect to Competition Laws other than those set forth on Schedule 7.1(e) shall be disregarded for purposes of this Section 7.1(d);
(e) the waiting period or required approval applicable to the transactions contemplated by this Agreement under the HSR Act and the other applicable Competition Laws and other regulatory approvals set forth on Schedule 7.1(e) shall have expired (or early termination shall have been granted) or been received; and
(f) Parent shall have received valid and binding Consents for the Contracts set forth on Section 8.2(d) a copy of the Disclosure ScheduleWritten Stockholder Consent.
(e) The Company shall have repaid in full any and all of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all Liens on any of their assets to be discharged, including those items referenced in Section 4.12 of the Disclosure Schedule, and shall have delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the respective meaning given to each such term in the Mast Preferred Stock Purchase Agreement.
Appears in 1 contract