Conditions to Completion. (A) Conditions 5.1 Completion is in all respects conditional upon the following matters: (a) the Golden Power Clearance having been obtained (the “Golden Power Condition”); (b) the Investment Canada Act Clearance having been obtained (the “Investment Canada Act Condition”); (c) the Antitrust Clearance having been obtained (the “Antitrust Condition” and, together with the Golden Power Condition and the Investment Canada Act Condition, the “Regulatory Condition”); (d) the LN Canada Reverse Carve-Out having been completed and being effective in accordance with clause 4; (e) the Italian Business Carve-Out and the LNSM HV Service Business Carve-Out having been completed and being effective in accordance with clause 3; (f) no Governmental Order being in effect preventing the consummation of the sale and purchase of the LN Canada Shares or the NewCo Shares; (g) except as Disclosed and except (other than in relation to the LNSM HV Service Business) to the extent relating to LNSM, each of the Warranties being true and correct as of December 2, 2020 and as of the Completion Date (in each case except for any such Warranty that is specifically given as of a particular date, which shall be true and correct as of such date), except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect; (h) each of the warranties given by the Purchaser in clause 21 being true and correct in all material respects as of December 2, 2020 and as of the Completion Date (in each case except for any such warranty that is specifically given as of a particular date, which shall be true and correct as of such date); (i) the Seller having complied in all material respects with its obligations under clause 11(A), clause 11.11 and clause 12.8, in each case except (other than in relation to the LNSM HV Service Business) to the extent relating to LNSM; (j) the Purchaser having complied in all material respects with its obligations hereunder to be performed prior to Completion; (k) no Material Adverse Effect having occurred since December 2, 2020 and being continuing, (together, the “Completion Conditions”). 5.2 No Completion Condition may be waived, in whole or in part, without the prior written consent of the Seller and the Purchaser, except for (a) the Completion Conditions in clauses 5.1(g), 5.1(i) and 5.1(k), which are provided in the sole and exclusive interest of the Purchaser and may be unilaterally waived, in whole or in part, in writing solely by the Purchaser and (b) the Completion Conditions in clauses 5.1(h) and 5.1(j), which are provided in the sole and exclusive interest of the Seller and may be unilaterally waived, in whole or in part, in writing solely by the Seller.
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Conditions to Completion. (A) 2.1 Conditions
5.1 : Completion is in all respects will be subject to and conditional upon the following matters:
Conditions being fulfilled (a) the Golden Power Clearance having been obtained (the “Golden Power Condition”);
(b) the Investment Canada Act Clearance having been obtained (the “Investment Canada Act Condition”);
(c) the Antitrust Clearance having been obtained (the “Antitrust Condition” and, together with the Golden Power Condition and the Investment Canada Act Condition, the “Regulatory Condition”);
(d) the LN Canada Reverse Carve-Out having been completed and being effective or waived in accordance with clause 4;clauses 2.3 and 2.4) as soon as possible following the signing of this Agreement and remaining so fulfilled or waived up to and including Completion:
(e) the Italian Business Carve-Out and the LNSM HV Service Business Carve-Out having been completed and being effective in accordance 2.1.1 prior to or substantially simultaneously with clause 3;
(f) no Governmental Order being in effect preventing the consummation of the sale and purchase of the LN Canada Shares or the NewCo Shares;
(g) except as Disclosed and except (other than in relation to the LNSM HV Service Business) to the extent relating to LNSMCompletion, each of the Warranties being true Transaction Documents having been duly executed and correct as of December 2, 2020 delivered by the applicable parties and as of the Completion Date (in each case except for any such Warranty that is specifically given as of a particular date, which shall be true and correct as of such date), except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effecthaving been terminated;
(h) 2.1.2 no Applicable Law or Judgment being in effect that prohibits the consummation of Completion and the other transactions contemplated by this Agreement and the other Transaction Documents;
2.1.3 each of the warranties given by the Purchaser in clause 21 Elan Warranties (i) set out at paragraphs 1.1, 1.2, 1.3, 1.4, 1.8, 2.1, 2.2, 2.3 and 2.4 of Part 1 of Schedule 1 being true and correct in all material respects as of December 2, 2020 at the date hereof and as of the Completion Date as though such Elan Warranty had been made at Completion (except, in each case except for any case, to the extent that such warranty that is specifically given Elan Warranty speaks as of a particular specific date, in which case such Elan Warranty shall be so true and correct in all material respects as of such specific date) and (ii) set out at any other paragraph of Part 1 of Schedule 1 (read without giving effect to any qualifications or exceptions contained therein regarding materiality or Elan Material Adverse Effect) being true and correct in all respects as at the date hereof and as of Completion as though such Elan Warranty had been made on Completion (except, in each case, to the extent that such Elan Warranty speaks as of a specific date, in which case such Elan Warranty shall be so true and correct in all respects as of such specific date), except, in the case of this clause (ii), where the facts or matters giving rise to any such failure or failures to be true and correct as have not had and could not reasonably be expected to have, individually or in the aggregate, an Elan Material Adverse Effect. Subscriber shall have received a certificate signed by an authorised officer of Elan to such date)effect;
2.1.4 each of the Subscriber Warranties (i) the Seller having complied set out at paragraphs 1.1, 1.2, 1.3 and 1.8 through 1.24 (inclusive) of Part 2 of Schedule 1 being true and correct in all material respects with its obligations under clause 11(A), clause 11.11 as at the date hereof and clause 12.8as of Completion as though such Subscriber Warranty had been made at Completion (except, in each case except (other than in relation to the LNSM HV Service Business) case, to the extent relating to LNSM;
(j) the Purchaser having complied that such Subscriber Warranty speaks as of a specific date, in which case such Subscriber Warranty shall be so true and correct in all material respects with its obligations hereunder as of such specific date) and (ii) set out at any other paragraph of Part 2 of Schedule 1 (read without giving effect to any qualifications or exceptions contained therein regarding materiality or Subscriber Material Adverse Effect) being true and correct in all respects as at the date hereof and as of Completion as though such Subscriber Warranty had been made on Completion (except, in each case, to the extent that such Subscriber Warranty speaks as of a specific date, in which case such Subscriber Warranty shall be so true and correct in all respects as of such specific date), except, in the case of this clause (ii), where the facts or matters giving rise to any such failure or failures to be performed prior true and correct have not had and could not reasonably be expected to Completion;
(k) no have, individually or in the aggregate, a Subscriber Material Adverse Effect having occurred since December 2, 2020 and being continuing, (together, the “Completion Conditions”).
5.2 No Completion Condition may be waived, in whole or in part, without the prior written consent Effect. Elan shall have received a certificate signed by an authorised officer of the Seller and the Purchaser, except for (a) the Completion Conditions in clauses 5.1(g), 5.1(i) and 5.1(k), which are provided in the sole and exclusive interest of the Purchaser and may be unilaterally waived, in whole or in part, in writing solely by the Purchaser and (b) the Completion Conditions in clauses 5.1(h) and 5.1(j), which are provided in the sole and exclusive interest of the Seller and may be unilaterally waived, in whole or in part, in writing solely by the Seller.Subscriber to such effect;
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Sources: Subscription and Transfer Agreement (Elan Corp PLC)
Conditions to Completion. 2.1 Except for the obligations set out in this clause, clause 6 (APre-Completion obligations) Conditions
5.1 Completion is and sub-clause 17.10 (Termination), the obligations of the Warrantors under this Agreement are in all respects conditional upon the following mattersfollowing:
(a) as at the Golden Power Clearance date of Completion, Activision having been obtained (performed all obligations and complied with all terms, conditions and covenants on its part agreed to be performed under this Agreement on or prior to the “Golden Power Condition”)date of the Completion;
(b) the Investment Canada Act Clearance having respective representations and warranties of Activision contained in this Agreement remaining true and correct both as of the date of this Agreement and as of the date of Completion with the same effect as though made at such date, except that any representation or warranty which is permitted to be and has been obtained (the “Investment Canada Act Condition”)made as of and expressly limited to, a specific date shall have been true and correct on and as of such date;
(c) Activision receiving separately from KPMG Peat Marwick, independent auditors for Activision, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent auditors of the Antitrust Clearance Group, letters dated the date of Completion (which may contain customary qualifications and assumptions) to the effect that KPMG Peat Marwick and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ respectively concur with Activision's management's conclusion that no conditions exist relating to Activision, the Company or the transactions contemplated by this Agreement that would preclude Activision from accounting for the share exchange as a pooling of interests for US accounting purposes under United States generally accepted accounting principles ("THE POOLING ARRANGEMENT");
2.2 Except for the obligations set out in this clause, clause 6 (Pre-Completion obligations) and sub-clause 17.10 (Termination), the obligations of Activision under this Agreement are in all respects conditional upon the following:
(a) conditional only upon Completion, the Company having been obtained duly passed requisite Board resolutions effecting the approval of all matters contemplated under this Agreement;
(b) the “Antitrust Condition” and, together respective representations and warranties of the Warrantors contained in this Agreement remaining true and correct and the information set forth in any Schedule to this Agreement being true and correct both at the date of this Agreement and at the date of Completion with the Golden Power Condition same effect as though made at such date, except that any representation or warranty or items of information set forth in a Schedule which is permitted to be and has been made as of and expressly limited to, a specific date shall have been true and correct on and as of such date;
(c) as of the Investment Canada Act Conditiondate of Completion there being no material adverse change in the condition of the Group or its business (financial or otherwise), results of operations, assets, net worth, prospects, properties or litigation, except that the “Regulatory Condition”termination of any of the contracts between a Group Company and any Contractor by reason solely of the exercise of a right of termination upon a Change of Control shall not be a material adverse change. Also for the purpose of this sub-clause, it shall be deemed not to be a material adverse change in the condition of the Group or its business (financial or otherwise), results of operations, assets, net worth, prospects, properties or litigation if a customer or customers individually or in the aggregate of the Group Companies (other than the Contractors) indicate that they will no longer transact business with the Group as a result of the Change of Control unless such customer or customers individually or in the aggregate have accounted for 7 1/2 % or more of the Group's turnover in the twelve complete calendar months immediately preceding the date of this Agreement in which case there shall be deemed to be a material adverse change;
(d) as of the LN Canada Reverse Carve-Out date of Completion, the Company and the Warrantors having been completed performed all obligations and being effective in accordance complied with clause 4all terms, conditions and covenants on their part agreed to be performed hereunder on or prior to the date of Completion;
(e) subsequent to the Italian Business Carve-Out date of this Agreement and prior to Completion, the Company and the LNSM HV Service Business Carve-Out Warrantors not having been completed and being effective in accordance with performed any of the acts prohibited by clause 36;
(f) no Governmental Order being Activision having received a written opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Aronsohn & ▇▇▇▇▇▇ LLP, its counsel, in form and substance reasonably satisfactory to it, to the effect preventing that the consummation share exchange will not result in a tax liability to Activision under the Code and such opinion shall not have been withdrawn; provided, however, that if such counsel does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Activision if the Company's counsel renders such opinion to Activision. Activision, the Company, and the Warrantors agree to make reasonable representations as requested by such counsel for the purpose of the sale and purchase of the LN Canada Shares or the NewCo Sharesrendering such opinion;
(g) except as Disclosed Activision receiving separately from KPMG Peat Marwick, independent auditors for Activision, and except ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent auditors of the Group, letters dated the date of Completion (other than in relation to the LNSM HV Service Businesswhich may contain customary qualifications and assumptions) to the extent effect that KPMG Peat Marwick and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ respectively concur with Activision's management's conclusion that no conditions exist relating to LNSMActivision, each of the Warranties being true and correct Company or the transactions contemplated by this Agreement that would preclude Activision from accounting for the share exchange as of December 2, 2020 and as of the Completion Date (in each case except for any such Warranty that is specifically given as of a particular date, which shall be true and correct as of such date), except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect;Pooling Arrangement; and
(h) each the Bank of Scotland having formally waived any event of default arising under the terms of its facility agreement dated 28 June 1996 by reason of change of control and having provided letters of non crystallisation in relation to Group debentures granted to them.
(a) The Warrantors shall (so far as it lies within their powers) use all reasonable endeavours to procure that the Conditions referred to in sub-clauses 2.2(a), (b), (c), (d), (e), (g), and (h) are satisfied as soon as possible and in any event not later than 26 November 1997 (or such later date as the parties may agree).
(b) Activision shall (so far as it lies within its powers) use all reasonable endeavours to procure that the Conditions referred to in sub-clause 2.1(a),(b) and (c) and 2.2 (f) are satisfied as soon as possible and in any event not later than 26 November 1997 (or such later date as the parties may agree).
2.4 If any of the warranties given Conditions is not satisfied in full by the Purchaser date specified in sub-clause 21 being true 2.3 then (in the case of the Conditions specified in sub-clause 2.
1) the Warrantors and correct (in the case of the Conditions specified in sub-clauses 2.
2) Activision shall be entitled at its (or as the case may be) their option either (in all material respects cases prior to Completion):
(a) to waive the unsatisfied Condition; or
(b) to extend the period for satisfying the unsatisfied Condition until 1 December 1997; or
(c) to treat this Agreement as of December 2, 2020 and as of the Completion Date (in each case except for any such warranty that is specifically given as of a particular date, which shall be true and correct as of such date);terminated:
(i) without prejudice to the Seller having fact that in the event of termination by Activision, Activision reserves any rights it may have against the Warrantors for breach if the Warrantors have not complied with their obligations in all material respects clause 2.3(a); and
(ii) without prejudice to the fact that in the event of termination by the Warrantors, the Warrantors reserve any rights they may have against Activision for breach if Activision has not complied with its obligations under in clause 11(A2.3(b), . PROVIDED THAT the party exercising the rights of termination referred to in clause 11.11 and clause 12.8, in each case except (other than in relation to the LNSM HV Service Business) to the extent relating to LNSM;
(j) the Purchaser having 2.4 shall have complied in all material respects with its own respective obligations hereunder to be performed prior to Completion;
in clause 2.3(a) or 2.3(b) (k) no Material Adverse Effect having occurred since December 2, 2020 and being continuing, (together, as the “Completion Conditions”case may be).
5.2 No Completion Condition may be waived, in whole or in part, without the prior written consent of the Seller and the Purchaser, except for (a) the Completion Conditions in clauses 5.1(g), 5.1(i) and 5.1(k), which are provided in the sole and exclusive interest of the Purchaser and may be unilaterally waived, in whole or in part, in writing solely by the Purchaser and (b) the Completion Conditions in clauses 5.1(h) and 5.1(j), which are provided in the sole and exclusive interest of the Seller and may be unilaterally waived, in whole or in part, in writing solely by the Seller.
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