Conditions Precedent to the Obligations. of All the Parties The respective obligations of the Parties to effect the Transactions shall be subject to satisfaction or waiver of the following conditions at or prior to the Closing Date: (a) All corporate action necessary to authorize the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions shall have been duly and validly taken; (b) The Parties shall have received all regulatory approvals required or mutually deemed necessary in connection with the Transactions, all notice periods and waiting periods required after the granting of any such approvals shall have passed and all conditions contained in any such approval required to have been satisfied prior to consummation of the Transactions shall have been satisfied, provided that no such approval shall have imposed any condition or requirement not reasonably foreseen as of the date of this Agreement that would, in the reasonable good faith opinion of the Board of Directors of CFX or Community, materially and adversely affects the anticipated economic and business benefits to CFX of the Transactions as to render consummation of the Transactions inadvisable, provided that no condition or requirement that relates primarily to regulatory matters existing at the date hereof with respect to CFX's business or activities shall be deemed to affect the business, operations, financial condition, property or assets of the combined enterprise or of Community or otherwise materially impair the value of Community to CFX; (c) One of the following shall have occurred: (i) a Registration Statement (including any post-effective amendment thereto) shall have been filed with the SEC and shall be effective under the Securities Act, and no proceeding shall be pending or to the knowledge of CFX threatened by the SEC to suspend the effectiveness of such Registration Statement; (ii) the Parties shall have received a "no-action" letter from the staff of the SEC stating that, by reason of the exemption afforded by Section 3(a)(10) of the Securities Act, it will not recommend any enforcement action to the SEC with respect to the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange without registration thereof under the Securities Act and that such shares do not constitute "restricted securities"; or (iii) the Parties shall have received an opinion of Arno▇▇ & ▇ort▇▇ ▇▇ the effect that the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange is exempt from the registration provisions of the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof and that such shares do not constitute "restricted securities"; (d) CFX shall have received all state securities or "Blue Sky" permits or other authorizations, or confirmations as to the availability of an exemption from registration requirements as may be necessary; (e) To the extent that any lease, license, loan, financing agreement or other contract or agreement to which Community is a party requires the consent of or waiver from the other party thereto as a result of the Transactions, such consent or waiver shall have been obtained, unless the failure to obtain such consents or waivers, individually or in the aggregate, would not have a Material Adverse Effect on Community; (f) None of the Parties shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits the consummation of the Transactions; (g) The shares of CFX Common Stock that may be issued in the Share Exchange shall have been approved for listing on the AMEX, subject to official notice of issuance; and (h) Community and CFX shall have received an opinion of Arno▇▇ & ▇ort▇▇, ▇▇asonably satisfactory to tax counsel for Community, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing on the Effective Date: (1) the Share Exchange shall either constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code or be treated as part of a reorganization within the meaning of Section 368(a) of the Code; (2) no gain or loss will be recognized by a shareholder of Community who exchanges all of the shareholder's Community Common Stock (including each attached right issued pursuant to the Community Rights Agreement) solely for CFX Common Stock in the Share Exchange (except with respect to cash received in lieu of a fractional share interest in CFX Common Stock); (3) the tax basis of the CFX Common Stock received by a shareholder who exchanges all of the shareholder's Community Common Stock solely for CFX Common Stock in the Share Exchange will be the same as the tax basis of the Community Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received); and (4) the holding period of the shares of CFX Common Stock to be received by a shareholder of Community will include the period during which such shareholder held the shares of Community Common Stock surrendered in exchange therefor, provided the Community Common Stock surrendered is held as a capital asset on the Effective Date. Each Party shall provide, in writing, a statement of facts, representations and assumptions on which Arno▇▇ & ▇ort▇▇ ▇▇▇ rely in rendering its opinion, which facts, representations and assumptions shall reflect the state of facts existing on the Effective Date.
Appears in 1 contract
Sources: Reorganization Agreement (CFX Corp)
Conditions Precedent to the Obligations. of All the Parties OF CFX AND BANK The respective obligations of the Parties CFX and Bank to effect the Transactions Merger shall be subject to satisfaction or waiver of the following additional conditions at or prior to the Closing DateDate unless waived by CFX pursuant to Section 6.4 hereof:
(a) All corporate action necessary to authorize the execution, delivery The representations and performance warranties of the Transaction Documents Milford set forth in Article 2 hereof shall be true and the consummation of the Transactions shall have been duly and validly taken;
(b) The Parties shall have received correct in all regulatory approvals required or mutually deemed necessary in connection with the Transactions, all notice periods and waiting periods required after the granting of any such approvals shall have passed and all conditions contained in any such approval required to have been satisfied prior to consummation of the Transactions shall have been satisfied, provided that no such approval shall have imposed any condition or requirement not reasonably foreseen material respects as of the date of this Reorganization Agreement that would, and as of the Closing Date as though made on and as of the Closing Date (or on the date when made in the reasonable good faith opinion case of any representation and warranty which specifically relates to an earlier date), except as otherwise contemplated by this Reorganization Agreement or consented to in writing by CFX; provided, however, that (i) in determining whether or not the Board of Directors of CFX condition contained in this paragraph (a) shall be satisfied, no effect shall be given to any exceptions in such representations and warranties relating to materiality or CommunityMaterial Adverse Effect, materially and adversely affects (ii) the anticipated economic and business benefits to CFX of the Transactions as to render consummation of the Transactions inadvisable, provided that no condition or requirement that relates primarily to regulatory matters existing at the date hereof with respect to CFX's business or activities contained in this paragraph (a) shall be deemed to affect the business, operations, financial condition, property or assets of the combined enterprise or of Community or otherwise materially impair the value of Community to CFX;
(c) One of the following shall have occurred:
(i) a Registration Statement (including any post-effective amendment thereto) shall have been filed with the SEC and shall be effective under the Securities Act, and no proceeding shall be pending or to the knowledge of CFX threatened by the SEC to suspend the effectiveness of such Registration Statement;
(ii) the Parties shall have received a "no-action" letter from the staff of the SEC stating that, by reason of the exemption afforded by Section 3(a)(10) of the Securities Act, it will not recommend any enforcement action to the SEC with respect to the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange without registration thereof under the Securities Act and that such shares do not constitute "restricted securities"; or
(iii) the Parties shall have received an opinion of Arno▇▇ & ▇ort▇▇ ▇▇ the effect that the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange is exempt from the registration provisions of the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof and that such shares do not constitute "restricted securities";
(d) CFX shall have received all state securities or "Blue Sky" permits or other authorizations, or confirmations as to the availability of an exemption from registration requirements as may be necessary;
(e) To the extent that any lease, license, loan, financing agreement or other contract or agreement to which Community is a party requires the consent of or waiver from the other party thereto as a result of the Transactions, such consent or waiver shall have been obtained, satisfied unless the failure of such representations and warranties to obtain such consents or waiversbe so true and correct constitute, individually or in the aggregate, would not have a Material Adverse Effect on CommunityMilford;
(b) Milford shall have, in all material respects, performed all obligations and complied with all covenants required by this Reorganization Agreement and the Plan of Merger;
(c) Milford shall have delivered to CFX and Bank a certificate, dated the Closing Date and signed by its President and Chief Executive Officer to the effect that the conditions set forth in this section have been satisfied;
(d) No event shall have occurred that shall preclude the Merger from being accounted for as a pooling of interests;
(e) CFX shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. a "comfort letter" dated not more than five days prior to (i) the effective date of the Registration Statement, if any, and, otherwise, the mailing date of the Proxy Statement, and (ii) the Closing Date, with respect to certain financial information regarding Milford, in form and substance which is customary in transactions of the nature contemplated by this Agreement; and
(f) None of the Parties shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits the consummation of the Transactions;
(g) The shares of CFX Common Stock that may be issued in the Share Exchange shall have been approved for listing on the AMEX, subject to official notice of issuance; and
(h) Community and CFX Bank shall have received an opinion of Arno▇▇▇▇▇▇▇▇ & ▇ort▇▇▇▇▇▇▇, ▇▇asonably satisfactory counsel to tax counsel for CommunityMilford, substantially dated the Closing Date, as to the effect that, on the basis of facts, representations such matters as CFX and assumptions set forth in such opinion which are consistent with the state of facts existing on the Effective Date:
(1) the Share Exchange shall either constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code or be treated as part of a reorganization within the meaning of Section 368(a) of the Code;
(2) no gain or loss will be recognized by a shareholder of Community who exchanges all of the shareholder's Community Common Stock (including each attached right issued pursuant to the Community Rights Agreement) solely for CFX Common Stock in the Share Exchange (except Bank may reasonably request with respect to cash received in lieu of a fractional share interest in CFX Common Stock);
(3) the tax basis of the CFX Common Stock received by a shareholder who exchanges all of the shareholder's Community Common Stock solely for CFX Common Stock in the Share Exchange will be the same as the tax basis of the Community Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received); and
(4) the holding period of the shares of CFX Common Stock to be received by a shareholder of Community will include the period during which such shareholder held the shares of Community Common Stock surrendered in exchange therefor, provided the Community Common Stock surrendered is held as a capital asset on the Effective Date. Each Party shall provide, in writing, a statement of facts, representations and assumptions on which Arno▇▇ & ▇ort▇▇ ▇▇▇ rely in rendering its opinion, which facts, representations and assumptions shall reflect the state of facts existing on the Effective Datetransactions contemplated hereby.
Appears in 1 contract
Sources: Reorganization Agreement (CFX Corp)
Conditions Precedent to the Obligations. of All the Parties The respective obligations of the Parties to effect the Transactions shall be subject to satisfaction or waiver of the following conditions at or prior to the Closing Date:
(a) All corporate action necessary to authorize the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions shall have been duly and validly taken;
(b) The Parties shall have received all regulatory approvals required or mutually deemed necessary in connection with the Transactions, all notice periods and waiting periods required after the granting of any such approvals shall have passed and all conditions contained in any such approval required to have been satisfied prior to consummation of the Transactions shall have been satisfied, provided that no such approval shall have imposed any condition or requirement not reasonably foreseen as of the date of this Agreement that would, in the reasonable good faith opinion of the Board of Directors of CFX or CommunityCFX, materially and adversely affects the anticipated economic and business benefits to CFX of the Transactions as to render consummation of the Transactions inadvisable, provided that no condition or requirement that relates primarily to regulatory matters existing at the date hereof with respect to CFX's business or activities shall be deemed to affect the business, operations, financial condition, property or assets of the combined enterprise or of Community Portsmouth or otherwise materially impair the value of Community Portsmouth to CFX;
(c) One of the following shall have occurred:
(i) a Registration Statement (including any post-effective amendment thereto) shall have been filed with the SEC and shall be effective under the Securities Act, and no proceeding shall be pending or to the knowledge of CFX threatened by the SEC to suspend the effectiveness of such Registration Statement;
(ii) the Parties shall have received a "no-action" letter from the staff of the SEC stating that, by reason of the exemption afforded by Section 3(a)(10) of the Securities Act, it will not recommend any enforcement action to the SEC with respect to the issuance of CFX Common Stock in exchange for Community Portsmouth Common Stock in connection with the Share Exchange without registration thereof under the Securities Act and that such shares do not constitute "restricted securities"; or
(iii) the Parties shall have received an opinion of Arno▇▇ & ▇ort▇▇ ▇▇ counsel to CFX reasonably satisfactory to the Parties to the effect that the issuance of CFX Common Stock in exchange for Community Portsmouth Common Stock in connection with the Share Exchange is exempt from the registration provisions of the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof and that such shares do not constitute "restricted securities";
(d) CFX shall have received all state securities or "Blue Sky" permits or other authorizations, or confirmations as to the availability of an exemption from registration requirements as may be necessary;
(e) To the extent that any lease, license, loan, financing agreement or other contract or agreement to which Community Portsmouth is a party requires the consent of or waiver from the other party thereto as a result of the Transactions, such consent or waiver shall have been obtained, unless the failure to obtain such consents or waivers, individually or in the aggregate, would not have a Material Adverse Effect on Communitythe Portsmouth Entities;
(f) None of the Parties shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits the consummation of the Transactions;
(g) The shares of CFX Common Stock that may be issued in the Share Exchange shall have been approved for listing on the AMEX, subject to official notice of issuance; and
(h) Community Portsmouth and CFX shall have received an opinion of Arno▇▇ Arnold & ▇ort▇▇Porter, ▇▇asonably reasonably satisfactory to tax counsel for CommunityPortsmout▇, substantially ▇▇▇sta▇▇▇▇▇▇y to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing on the Effective Date:
(1) the Share Exchange shall either constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code or be treated as part of a reorganization within the meaning of Section 368(a) of the Code;
(2) no gain or loss will be recognized by a shareholder of Community Portsmouth who exchanges all of the shareholder's Community Portsmouth Common Stock (including each attached right issued pursuant to the Community Rights Agreement) solely for CFX Common Stock in the Share Exchange (except with respect to cash received in lieu of a fractional share interest in CFX Common Stock);
(3) the tax basis of the CFX Common Stock received by a shareholder who exchanges all of the shareholder's Community Portsmouth Common Stock solely for CFX Common Stock in the Share Exchange will be the same as the tax basis of the Community Portsmouth Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received); and
(4) the holding period of the shares of CFX Common Stock to be received by a shareholder of Community Portsmouth will include the period during which such shareholder held the shares of Community Portsmouth Common Stock surrendered in exchange therefor, provided the Community Portsmouth Common Stock surrendered is held as a capital asset on the Effective Date. Each Party shall provide, in writing, a statement of facts, representations and assumptions on which Arno▇▇ Arnold & ▇ort▇▇ ▇▇▇ Porter may rely in rendering its opinion, which facts, representations and repre▇▇▇▇▇▇ion▇ ▇▇▇ assumptions shall reflect the state of facts existing on the Effective Date.
Appears in 1 contract
Sources: Reorganization Agreement (CFX Corp)
Conditions Precedent to the Obligations. of All the Parties OF CFX, BANK AND MILFORD The respective obligations of the Parties parties to effect the Transactions Merger shall be subject to satisfaction or waiver of the following conditions at or prior to the Closing Date:
(a) All corporate action necessary to authorize the execution, delivery and performance of the Transaction Documents this Reorganization Agreement and the Plan of Merger and consummation of the Transactions transactions contemplated hereby and thereby shall have been duly and validly taken;
(b) The Parties parties hereto shall have received all regulatory approvals required or mutually deemed necessary in connection with the Transactionstransactions contemplated by this Reorganization Agreement and the Plan of Merger, all notice periods and waiting periods required after the granting of any such approvals shall have passed and all conditions contained in any such approval required to have been satisfied prior to consummation of the Transactions such transactions shall have been satisfied, provided provided, however, that no such approval shall have imposed any condition or requirement not reasonably foreseen as of the date of this Agreement that wouldwhich, in the reasonable good faith opinion of the Board of Directors of CFX or Community, materially and adversely affects the anticipated economic and business benefits to CFX of the Transactions transactions contemplated by this Agreement as to render consummation of the Transactions such transactions inadvisable, provided that no condition or requirement that relates primarily to regulatory matters existing at the date hereof with respect to CFX's business or activities shall be deemed to affect the business, operations, financial condition, property or assets of the combined enterprise or of Community or otherwise materially impair the value of Community to CFX;
(c) One of the following shall have occurred:
(i) a Registration Statement (including any post-effective amendment thereto) shall have been filed with the SEC Commission and shall be effective under the Securities Act, and no proceeding shall be pending or to the knowledge of CFX threatened by the SEC Commission to suspend the effectiveness of such Registration Statement;
(ii) the Parties CFX and Milford shall have received a "no-action" letter from the staff of the SEC Commission stating that, by reason of the exemption afforded by Section 3(a)(10) of the Securities Act, it will not recommend any enforcement action to the SEC Commission with respect to the issuance of CFX Common Stock in exchange for Community Milford Common Stock in connection with the Share Exchange Merger without registration thereof under the Securities Act and that such shares do not constitute "restricted securities"Act; or
(iii) the Parties CFX and Milford shall have received an opinion of Arno▇▇ & ▇ort▇▇ ▇▇ counsel to CFX reasonably satisfactory to CFX and Milford to the effect that the issuance of CFX Common Stock in exchange for Community Milford Common Stock in connection with the Share Exchange Merger is exempt from the registration provisions of the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof and that such shares do not constitute "restricted securities"thereof;
(d) CFX shall have received all state securities or "Blue Sky" permits or other authorizations, or confirmations as to the availability of an exemption from registration requirements as may be necessary;
(e) To the extent that any lease, license, loan, financing agreement or other contract or agreement to which Community Milford is a party requires the consent of or waiver from the other party thereto as a result of the Transactionstransactions contemplated by this Agreement, such consent or waiver shall have been obtained, unless the failure to obtain such consents or waivers, individually or in the aggregate, would not have a Material Adverse Effect on CommunityMilford;
(f) None of the Parties parties hereto shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits the consummation of the Transactionstransactions contemplated by this Reorganization Agreement and the Plan of Merger;
(g) The shares of CFX Common Stock that may be issued in the Share Exchange Merger shall have been approved for listing on the AMEX, subject to official notice of issuance; and
(h) Community Milford and CFX shall have received an opinion of Arno▇▇▇▇▇▇ & ▇ort▇▇, ▇▇asonably satisfactory to tax counsel for Community▇, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing on the Effective Date:
(1) the Share Exchange Merger shall either constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code or be treated as part of a reorganization within the meaning of Section 368(a) of the Code;
(2) no gain or loss will be recognized by Milford on the transfer of its assets to the Bank pursuant to the Merger;
(3) no gain or loss will be recognized by a shareholder of Community Milford who exchanges all of the shareholder's Community Milford Common Stock (including each attached right issued pursuant to the Community Rights Agreement) solely for CFX Common Stock in the Share Exchange Merger (except with respect to cash received in lieu of a fractional share interest in CFX Common Stock);
(34) the tax basis of the CFX Common Stock received by a shareholder sharehold- er who exchanges all of the shareholder's Community Milford Common Stock solely for CFX Common Stock in the Share Exchange Merger will be the same as the tax basis of the Community Milford Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received); and
(45) the holding period of the shares of CFX Common Stock to be received by a shareholder of Community Milford will include the period during which such shareholder held the shares of Community Milford Common Stock surrendered in exchange therefor, provided the Community Milford Common Stock surrendered is held as a capital asset on the Effective Date. Each Party shall provide, in writing, a statement of facts, representations and assumptions on which Arno▇▇ & ▇ort▇▇ ▇▇▇ rely in rendering its opinion, which facts, representations and assumptions shall reflect the state of facts existing on the Effective Date.
Appears in 1 contract
Sources: Reorganization Agreement (CFX Corp)
Conditions Precedent to the Obligations. of All the Parties Vanguard Trust ------------------------------------------------------------- The respective obligations of the Parties Vanguard Trust to effect complete the Transactions shall transactions provided for in this Agreement will be subject subject, at its election, to satisfaction the performance by the ▇▇▇▇▇▇▇▇ Trust of all the obligations to be performed by it under this Agreement on or waiver before the Closing Date and, in addition to those obligations, the following conditions:
7.1 All representations and warranties of the following conditions at or prior to the Closing Date:
(a) All corporate action necessary to authorize the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions shall have been duly and validly taken;
(b) The Parties shall have received all regulatory approvals required or mutually deemed necessary in connection with the Transactions, all notice periods and waiting periods required after the granting of any such approvals shall have passed and all conditions ▇▇▇▇▇▇▇▇ Trust contained in any such approval required to have been satisfied prior to consummation of the Transactions shall have been satisfied, provided that no such approval shall have imposed any condition or requirement not reasonably foreseen this Agreement will be true and correct in all material respects as of the date of this Agreement that wouldand, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date with the same force and effect as if made on and as of the Closing Date;
7.2 The ▇▇▇▇▇▇▇▇ Trust will have delivered to the Vanguard Trust a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs (and, if different from tax costs, book costs) of those securities by lot and the holding periods of the securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the ▇▇▇▇▇▇▇▇ Trust;
7.3 The ▇▇▇▇▇▇▇▇ Trust will have delivered to the Vanguard Trust on the Closing Date a certificate executed in its name, and on behalf of the Selling Fund, by its President or Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to the reasonable good faith Vanguard Trust and dated as of the Closing Date, to the effect that the representations and warranties of the ▇▇▇▇▇▇▇▇ Trust made in this Agreement are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Vanguard Trust shall reasonably request; and
7.4 The Vanguard Trust will have received on the Closing Date a favorable opinion of Ropes & ▇▇▇▇, counsel to the Board of Directors of CFX or Community▇▇▇▇▇▇▇▇ Trust, materially and adversely affects the anticipated economic and business benefits to CFX dated as of the Transactions as Closing Date, in a form reasonably satisfactory to render consummation the Vanguard Trust, covering the following points:
(a) the Selling Fund is a separate investment series of the Transactions inadvisable▇▇▇▇▇▇▇▇ Trust, provided a business trust that no condition or requirement that relates primarily is duly organized, validly existing and in good standing under the laws of the State of Delaware and the ▇▇▇▇▇▇▇▇ Trust has the corporate power to regulatory matters existing at own all of the date hereof Selling Fund's properties and assets and to carry on the Selling Fund's business as presently conducted;
(b) the ▇▇▇▇▇▇▇▇ Trust is registered as an investment company under the 1940 Act and, to such counsel's knowledge, the ▇▇▇▇▇▇▇▇ Trust's registration with the Commission as an investment company under the 1940 Act is in force and effect with respect to CFX's business or activities shall be deemed to affect the business, operations, financial condition, property or assets of the combined enterprise or of Community or otherwise materially impair the value of Community to CFXSelling Fund;
(c) One this Agreement has been duly authorized, executed and delivered by the ▇▇▇▇▇▇▇▇ Trust and, assuming that the Prospectus, the Registration Statement and the Proxy Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations under those laws and, assuming due authorization, execution and delivery of the following shall have occurred:
(i) Agreement by the Vanguard Trust, is a Registration Statement (including any post-effective amendment thereto) shall have been filed valid and binding obligation of the ▇▇▇▇▇▇▇▇ Trust enforceable against the ▇▇▇▇▇▇▇▇ Trust in accordance with the SEC and shall be effective under the Securities Actits terms, and no proceeding shall be pending or subject to the knowledge effect of CFX threatened by the SEC bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to suspend the effectiveness of such Registration Statement;
(ii) the Parties shall have received a "no-action" letter from the staff of the SEC stating thator affecting creditors, by reason of the exemption afforded by Section 3(a)(10) of the Securities Act, it will not recommend any enforcement action rights generally and to the SEC with respect to the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange without registration thereof under the Securities Act and that such shares do not constitute "restricted securities"; or
(iii) the Parties shall have received an opinion of Arno▇▇ & ▇ort▇▇ ▇▇ the effect that the issuance of CFX Common Stock in exchange for Community Common Stock in connection with the Share Exchange is exempt from the registration provisions of the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof and that such shares do not constitute "restricted securities"general equity principles;
(d) CFX shall have received all state securities the execution and delivery of the Agreement did not, and the consummation of the transactions contemplated by this Agreement will not, result in a violation of the ▇▇▇▇▇▇▇▇ Trust's Declaration of Trust or "Blue Sky" permits a material violation of any provision of any agreement (known to such counsel) to which the ▇▇▇▇▇▇▇▇ Trust is a party or other authorizationsby which it or its properties are bound or, or confirmations as to the availability knowledge of an exemption from registration requirements as may be necessarysuch counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment or decree to which the ▇▇▇▇▇▇▇▇ Trust is a party or by which it or its properties are bound;
(e) To to the extent that knowledge of such counsel, no consent, approval, authorization or order of any lease, license, loan, financing agreement court or other contract or agreement to which Community is a party requires the consent of or waiver from the other party thereto as a result governmental authority of the TransactionsUnited States or State of Delaware is required for the consummation by the ▇▇▇▇▇▇▇▇ Trust of the transactions contemplated in this Agreement, except such consent or waiver shall as have been obtainedobtained under the 1933 Act, unless the failure to obtain such consents or waivers, individually or in 1934 Act and the aggregate, would not have a Material Adverse Effect on Community1940 Act;
(f) None counsel does not know of the Parties shall be subject to any legal, administrative or governmental proceedings, investigation, order, decree or injunction judgment of a any court or agency of competent jurisdiction which enjoins governmental body, only insofar as they relate to the ▇▇▇▇▇▇▇▇ Trust or prohibits its respective assets or properties, pending, threatened or otherwise existing on or before the consummation effective date of the Transactions;
(g) The shares of CFX Common Stock that may Registration Statement or the Closing Date, which are required to be issued described in the Share Exchange shall Registration Statement or to be filed as exhibits to the Registration Statement that are not described and filed as required or that materially and adversely affect the Selling Fund's business. The opinion may state that counsel does not express any opinion or belief as to the Financial Statements or other financial data, or as to the information relating to the Vanguard Trust or the Acquiring Fund, contained in the Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the Vanguard Trust and its directors and officers. The opinion also will include such other matters incident to the transaction contemplated by this Agreement as the Fund may reasonably request. In this paragraph 7.4, references to the Proxy Statement include and relate only to the text of the Proxy Statement and not to any exhibits or attachments to the Proxy Statement or to any documents incorporated by reference in the Proxy Statement.
7.5 The Vanguard Trust will have been approved for listing received on the AMEX, subject to official notice of issuance; and
(h) Community and CFX shall have received an Closing Date a favorable opinion of Arnothe General Counsel of ▇▇▇▇▇▇▇▇ & ▇ortFund Advisors Inc. ("SFA") and Secretary to the ▇▇, ▇▇asonably ▇▇▇▇ Trust (the "▇▇▇▇▇▇▇▇ Officer"), dated as of the Closing Date, in a form reasonably satisfactory to tax counsel the Vanguard Trust, that the description of the ▇▇▇▇▇▇▇▇ Trust, the Selling Fund, and ▇▇▇▇▇▇▇▇ Management in the Proxy Statement is accurate in all material respects and fairly present the information required to be shown. The ▇▇▇▇▇▇▇▇ Officer also will state that such person has participated in conferences with officers and other representatives of the ▇▇▇▇▇▇▇▇ Trust at which the contents of the Proxy Statement and related matters were discussed and, although such person is not passing upon and does not assume any responsibility for Communitythe accuracy, substantially completeness or fairness of the statements contained in the Proxy Statement (except to the effect thatextent indicated in this paragraph 7.5), on the basis of factsthe foregoing information (relying as to materiality to a large extent upon the opinions of officers and other representatives of the ▇▇▇▇▇▇▇▇ Trust), representations she does not believe that the Proxy Statement as of its date, as of the date of the Selling Fund's shareholder meeting, and assumptions set forth as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated in such the Proxy Statement regarding the Selling Fund or necessary in the light of the circumstances under which they were made, to make the statements in the Proxy Statement regarding the Selling Fund not misleading. The opinion which are consistent with referred to in this paragraph 7.5 shall be given by the state ▇▇▇▇▇▇▇▇ Officer solely in her capacity as an officer of facts existing on SFA and the Effective Date▇▇▇▇▇▇▇▇ Trust, and not personally. In this paragraph 7.5, references to the Proxy Statement include and relate only to the text of the Proxy Statement and not to any exhibits or attachments to the Proxy Statement or to any documents incorporated by reference in the Proxy Statement.
7.6 The Vanguard Trust will have received from PricewaterhouseCoopers LLP a letter addressed to the Vanguard Trust dated as of the effective date of the Registration Statement in form and substance satisfactory to the Vanguard Trust, to the effect that:
(1a) they are independent public accountants with respect to the Share Exchange shall either constitute a reorganization for federal income tax purposes ▇▇▇▇▇▇▇▇ Trust within the meaning of Section 368(a) of the Code or be treated as part of a reorganization within 1933 Act and the meaning of Section 368(a) of applicable regulations under the Code1933 Act;
(2b) no gain or loss will be recognized by a shareholder of Community who exchanges all in their opinion, the Financial Statements and Financial Highlights of the shareholder's Community Common Stock (including each attached right issued pursuant to the Community Rights Agreement) solely for CFX Common Stock Selling Fund included or incorporated by reference in the Share Exchange (except Registration Statement and reported on by them comply as to form in all material respects with respect to cash received in lieu of a fractional share interest in CFX Common Stock);
(3) the tax basis applicable accounting requirements of the CFX Common Stock received by a shareholder who exchanges all of 1933 Act and the shareholder's Community Common Stock solely for CFX Common Stock in rules and regulations under the Share Exchange will be the same as the tax basis of the Community Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received)1933 Act; and
(4c) the holding period of the shares of CFX Common Stock to be received by a shareholder of Community will include the period during which such shareholder held the shares of Community Common Stock surrendered in exchange therefor, provided the Community Common Stock surrendered is held as a capital asset on the Effective Date. Each Party shall provide, in writing, a statement basis of facts, representations limited procedures agreed upon by the Vanguard Trust and assumptions on which Arnothe ▇▇ & ▇ort▇▇ ▇▇▇▇▇ rely Trust and described in rendering the letter (but not an examination in accordance with generally accepted auditing standards), the specified information relating to the Selling Fund appearing in the Registration Statement and the Proxy Statement has been obtained from the accounting records of the Selling Fund or from schedules prepared by officers of the ▇▇▇▇▇▇▇▇ Trust having responsibility for financial and reporting matters and the information is in agreement with these records, schedules or computations made from those documents.
7.7 The ▇▇▇▇▇▇▇▇ Trust will have delivered to the Vanguard Trust copies of Financial Statements of the Selling Fund as of and for its opinionmost recently completed fiscal year.
7.8 The Vanguard Trust shall have received from PricewaterhouseCoopers LLP a letter addressed both to the Vanguard Trust and the ▇▇▇▇▇▇▇▇ Trust, which factsdated as of the Closing Date, representations stating that, as of a date no more than three (3) business days prior to the Closing Date, PricewaterhouseCoopers LLP performed limited procedures and assumptions shall reflect the state of facts existing that on the Effective Datebasis of those procedures it confirmed the matters set forth in paragraph 7.6(c).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Vanguard Whitehall Funds)