Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions: (a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date. (b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants. (c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings. (d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC. (e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions. (f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers. (g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance. (h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings. (i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Herc Holdings Inc), Separation and Distribution Agreement (Hertz Rental Car Holding Company, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling Separation shall have been completed substantially in accordance with the Separation Plan (other than those steps that Old Hertz Holdings received from are expressly contemplated to occur at or after the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) time of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.);
(b) Old Hertz Holdings shall have received the opinions The shares of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of SpinCo Common Stock deliverable in the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened as contemplated by the SEC.
(e) All statutory requirements for the consummation of the Distributions this Agreement shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listinglisting on NYSE, subject to official notice of issuance.;
(hc) Any material Consents necessary for the Distribution must The Debt Exchange shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.completed in accordance with this Agreement and applicable Law;
(i) The actions set forth An independent nationally recognized appraisal firm shall have delivered an opinion to the Board of Directors of Post (a copy of which shall have been furnished to BellRing) as to the solvency of SpinCo and Post, in Sections 3.1(beach case after giving effect to the Separation, including the issuance of the SpinCo Debt, and the consummation of the Distribution, (y) that (1) immediately prior to any Distribution effected as a Spin-Off, the net assets of Post are not less than its stated capital and (2) immediately after giving effect to the Separation, including the issuance of the SpinCo Debt, such Distribution will not reduce its net assets below its stated capital, and (z) to the extent any Distribution is effected as an Exchange Offer, Post will have sufficient surplus to consummate the Exchange Offer (with the terms “solvency,” “net assets,” “stated capital” and “surplus” having the meaning ascribed thereto under, with respect to SpinCo, Delaware law or, with respect to Post, Missouri law) (the “Solvency Opinion”), (d), (h), (i), (jii) such Solvency Opinion shall be reasonably acceptable to Post in form and substance and (kiii) such Solvency Opinion shall not have been withdrawn or rescinded or modified in any respect adverse to Post; and
(e) Each of the conditions in Article IX of this Agreement to Post’s, SpinCo’s and BellRing’s obligations to effect the Closing shall have been completed. The foregoing satisfied or waived (other than those conditions may only that by their nature are to be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to satisfied at the Distribution concerning Effective Time or at the Closing, but subject to the satisfaction or waiver of any or all those conditions at such time) and the parties hereto shall have confirmed that the Closing will occur subject only to the Distribution and the satisfaction of the conditions set forth in this Section 3.2 shall that may only be conclusivesatisfied at Closing.
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (BellRing Distribution, LLC), Transaction Agreement and Plan of Merger (Post Holdings, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties ADP to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) ADP, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings final approval of the Distribution shall have been given by the Board of Directors of ADP, and the Board of Directors of ADP shall have declared the dividend of Dealer Common Stock, each such action in its sole and absolute discretion;
(b) the Registration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no stop-order in effect with respect thereto and the Information Statement or a notice of the internet availability thereof shall have been mailed to ADP stockholders;
(c) the actions and filings necessary or appropriate under applicable federal and state securities Laws of the United States (and any comparable Laws under any foreign jurisdictions) in connection with the Distribution (including, if applicable, any actions and filings relating to the Registration Statement) and any other necessary and applicable Consents from any Governmental Authority shall have been taken, obtained and, where applicable, have become effective or been accepted, each as the case may be;
(d) the Dealer Common Stock to be delivered in the Distribution shall have been approved for listing on the NASDAQ, subject to official notice of issuance;
(e) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Pre-Distribution Transactions or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(f) ADP shall have received a tax opinion from the Internal Revenue Service ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to ADP, to the effect that, subject to that the accuracy of LLC Conversion and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction spin-off under Sections 368(a)(1)(D) and 355 of the Code;
(g) ADP shall have established the Record Date and 368(a)(1)(Dshall have given the NASDAQ not less than ten (10) days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act and Rule 5250(e)(6) of the Code and NASDAQ Continued Listing Guide;
(iih) the internal spin-off transactions Distribution will not violate or result in a breach of Law or any material agreement;
(collectively with the Distribution, the “Distributions”i) and certain related transactions all material Consents required in connection with the Distributions will be tax-free transactions contemplated hereby (that are not referred to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b3.3(c), (d), (h), (i), (j) and (k) shall have been completedreceived and be in full force and effect;
(j) each of the Pre-Distribution Transactions shall have been consummated in accordance with this Agreement;
(k) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with prior to the Effective Time; and
(l) the Board of Directors of ADP shall have not determined that any event or development shall have occurred or exists, or might occur or exist, that makes it inadvisable to effect the Distribution. The Each of the foregoing conditions may only be waived by is for the Old Hertz Holdings Boardsole benefit of ADP and ADP may, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board ADP, in its sole and absolute discretion, prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusiveconclusive and binding on the Parties. Each Party will use good faith efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Automatic Data Processing Inc), Separation and Distribution Agreement (Dealer Services Holdings LLC)
Conditions to Distribution. Pursuant Subject to Section 3.53.4, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, for example, it determines that the Separation is not in the best interests Distribution. The obligation of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties iGATE to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) iGATE, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from iGATE shall enter into a distribution agent agreement with the Internal Revenue Service to Agent (the effect that“Distribution Agent Agreement”) providing for, subject to the accuracy of and compliance with certain representations, assumptions and covenantsamong other things, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) payment of the Code Distribution to the holders of iGATE Common Stock in accordance with this Article III and the Distribution Agent Agreement, and (ii) the internal spindesignation of Mastech as a third party beneficiary. iGATE and Mastech shall deliver to the Distribution Agent (i) book-off transactions (collectively with entry transfer authorizations for all of the Distribution, the “Distributions”) and certain related transactions outstanding shares of Mastech Common Stock to be distributed in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as payment of the Distribution and (ii) all information required to complete the Distribution on the basis set forth herein and under the Distribution Agent Agreement. Following the Distribution Date, upon the request of the Distribution Agent, Mastech shall provide to the Distribution Agent book-entry transfer authorizations of Mastech Common Stock that the Distribution Agent shall require in order to further effect the Distribution.
(b) Old Hertz Holdings The Form 10 shall have received been declared effective by the opinions Commission, with no stop order in effect with respect thereto;
(c) The Mastech Common Stock to be delivered in the Distribution shall have been approved for listing on the AMEX, subject to official notice of distribution;
(d) On or prior to the Effective Time, all necessary actions shall be taken to adopt the form of certificate of incorporation and by-laws filed by Mastech with the Commission as exhibits to the Form 10.
(e) On or prior to the Effective Time, iGATE and Mastech shall take all necessary action to cause Mastech to form its Board of Directors.
(f) On or prior to the Effective Time, (i) iGATE shall cause all of its Tax Advisors employees and any employees of its Affiliates who will become a Mastech Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the iGATE Group in which they serve, unless such person will continue as a director of iGATE after the Effective Time, and (ii) Mastech shall cause all of its employees and any employees of its Affiliates who will become an iGATE Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Mastech Group in which they serve, unless such person will continue as a director of Mastech after the Effective Time. No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the Information Statement as the Person who is to hold such position or office following the Distribution.
(g) On or prior to the Effective Time, iGATE and Mastech shall enter into, and/or (where applicable) shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.
(h) iGATE shall have obtained an opinion from ▇▇▇▇ ▇▇▇▇▇ LLP, its tax counsel, in form and substance satisfactory to iGATE (in its sole discretion), substantially to the effect that the Distributions Distribution will qualify as tax-free transactions for Federal income tax purposes under Section 355 of the Code;
(i) iGATE shall have obtained a solvency opinion from ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, subject Inc., in form and substance satisfactory to iGATE (in its sole discretion), which solvency opinion shall provide such firm’s opinion that Mastech will be solvent following the accuracy of and compliance with certain representations, assumptions and covenantsDistribution.
(cj) Old Hertz Holdings All permits, registrations and Consents required under the securities or blue sky Laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdingsbeen obtained and be in full force and effect; and
(k) No order, which confirms the solvency and financial viability injunction or decree issued by any Governmental Entity of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation or any of the Distribution transactions related thereto, including the Transfer of Assets and is in form and substance acceptable assumption of Liabilities pursuant to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActArticle II hereof, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation . Each of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are is for the sole benefit of Old Hertz Holdings iGATE and shall not give rise to or create any duty on the part of iGATE or the Old Hertz Holdings Board of Directors of iGATE to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board iGATE, in its sole and absolute discretion prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.5 shall be conclusiveconclusive and binding on the Parties.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Mastech Holdings, Inc.), Separation and Distribution Agreement (Igate Corp)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to Parent shall consummate the Distribution shall be conditioned on no later than July 31, 2000 subject to the satisfaction, or waiver by the Old Hertz Holdings Parent's Board (except with respect to clauses (d) and (e) below)in its sole discretion, of the following conditionsconditions set forth below:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the Letter Ruling shall continue in effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction distribution for federal income tax purposes under Sections Section 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Dateby Parent of Company Common Stock to stockholders of Parent will not result in recognition of any income, gain or loss for federal income tax purposes to Parent or Parent's stockholders.
(b) Old Hertz Holdings the Form 10 shall have received become effective under the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.Exchange Act;
(c) Old Hertz Holdings the Company Common Stock to be delivered in the Distribution shall have received a written solvency opinion been approved for listing on Nasdaq, subject to official notice of issuance;
(d) The Parent's Board of Directors shall be satisfied that the Distribution will be made out of surplus within the meaning of Section 170 of the General Corporation Law of the State of Delaware;
(e) Parent's Board of Directors shall have approved the Distribution and shall not have abandoned, deferred or modified the Distribution at any time prior to the Record Date;
(f) the separation of assets and liabilities referred to in Section 2.1 of this Agreement shall have been effected;
(g) the Company's certificate of incorporation (the "Restated Company Charter") and bylaws, in substantially the same forms attached as Exhibits A and B, respectively, hereto shall be in effect;
(h) each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(i) any material Governmental Approvals and Consents necessary to consummate the Distribution shall have been obtained and be in full force and effect;
(j) the credit facilities pertaining to the Company shall have been restructured or assigned to the satisfaction of the Parent, and Parent shall have been released from a financial advisor acceptable all guaranties and other obligations relating to Old Hertz Holdingsthe Company Business and the Company's credit facilities, which confirms medium term notes, commercial paper programs and other indebtedness except Parent shall continue its guarantee as reflected on the solvency and financial viability Reimbursement Agreement;
(k) no order, injunction or decree issued by any court or agency of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose other event outside the control of Parent shall be pending before have occurred or threatened by the SEC.
(e) All statutory requirements for failed to occur that prevents the consummation of the Distributions Distribution; and
(l) no other events or developments shall have been satisfiedoccurred that, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion judgment of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listingParent's Board, subject to official notice of issuance.
(h) Any material Consents necessary for would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings Parent or New Hertz Holdings.
(i) The actions set forth on the stockholders of Parent or if the Parent Board determines that the Distribution would not be in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedthe best interests of Parent or the stockholders of Parent. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Parent and shall not give rise to or create any duty on the part of Parent or the Old Hertz Holdings Parent's Board of Directors to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusivecondition.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Anc Rental Corp), Separation and Distribution Agreement (Autonation Inc /Fl)
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings PDL and shall not give rise to or create any duty on the part of PDL or the Old Hertz Holdings Board of Directors of PDL to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Board prior to SEC, with no stop order in effect with respect thereto;
(b) All permits, registrations and consents required under the securities or blue sky laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Separation and the Distribution concerning shall have been obtained and be in full force and effect;
(c) All material Government Approvals and other consents necessary to consummate the satisfaction Separation and the Distribution shall have been obtained and be in full force and effect;
(d) No order, injunction or waiver decree issued by any court or agency of any competent jurisdiction or all other legal restraint or prohibition preventing the consummation of the conditions set forth in this Section 3.2 Separation and the Distribution shall be conclusivein effect and no other event outside the control of PDL shall have occurred or failed to occur that prevents the consummation of the Distribution;
(e) The Board of Directors of PDL shall have authorized and approved the Distribution and not withdrawn such authorization and approval;
(f) The Board of Directors of PDL shall have approved the basis of the determination of the Selected Liabilities and categories of assets and liabilities included in both the Opening Facet Balance Sheet and the PDL Consolidated Balance Sheet.
(g) The Facet Common Stock to be delivered in the Distribution shall have been approved for listing on the Exchange;
(h) PDL shall have completed the Transfer of Facet Assets and transfer of Facet Employees to Facet, and the Assumption of all the Facet Liabilities by Facet shall be completed;
(i) All Ancillary Agreements shall have been entered into by the Parties and all other Parties thereto, as applicable, and shall remain in full force and effect; and
(j) No other events or developments shall have occurred that, in the sole discretion of the Board of Directors of PDL, would result in the Distribution having a material adverse effect on PDL or on the stockholders of PDL or not being in the best interest of PDL and its stockholders.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Facet Biotech Corp), Separation and Distribution Agreement (PDL Biopharma, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms (a) The consummation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties will be subject to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) ConocoPhillips in its sole and (e) below)absolute discretion, of the following conditions:conditions set forth in this Section 3.3(a). Any determination by ConocoPhillips regarding the satisfaction or waiver of any of such conditions will be conclusive.
(ai) The Separation shall have been completed in accordance with the Restructuring Steps Memorandum.
(ii) ConocoPhillips will have received a private letter ruling that Old Hertz Holdings received from the U.S. Internal Revenue Service substantially to the effect that, subject to among other things, the accuracy of Contribution and compliance with certain representationsthe Distribution, assumptions and covenantsif effected, (i) the Distribution taken together, will qualify as a transaction that is tax-free transaction for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code Code.
(iii) All Governmental Approvals necessary to consummate the Distribution shall have been obtained and be in full force and effect.
(iiiv) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) The actions and certain related transactions filings necessary or appropriate under applicable securities laws in connection with the Distributions Distribution will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked taken or modified in any material respect as of made, and, where applicable, have become effective or been accepted by the Distribution Dateapplicable Governmental Authority.
(bv) Old Hertz Holdings shall have received the opinions No order, injunction or decree issued by any court or agency of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation or any of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 related transactions shall be in effect, and no proceedings for such purpose other event outside the control of ConocoPhillips shall be pending before have occurred or threatened by the SEC.
(e) All statutory requirements for failed to occur that prevents the consummation of the Distributions Distribution or any of the related transactions.
(vi) A Registration Statement on Form 10 registering the ▇▇▇▇▇▇▇▇ 66 Common Stock (the “Form 10”) shall be effective under the Exchange Act, with no stop order in effect with respect thereto, and the Information Statement included therein (the “Information Statement”) shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion mailed to ConocoPhillips’ stockholders as of the DistributionsRecord Date.
(fvii) The Internal Reorganization ▇▇▇▇▇▇▇▇ 66 Common Stock to be distributed to the ConocoPhillips stockholders in the Distribution shall have been completed and HERC shall have entered into accepted for listing on the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listingNYSE, subject to official notice of issuancedistribution.
(hviii) Any material Consents necessary for Each of the Distribution must Ancillary Agreements shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdingsduly executed and delivered by the parties thereto.
(iix) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) No events or developments shall have been completed. The foregoing conditions may only be waived by occurred or exist that, in the Old Hertz Holdings judgment of the ConocoPhillips Board, in its sole and absolute discretion, make it inadvisable to effect the Distribution or the other transactions contemplated hereby, or would result in the Distribution or the other transactions contemplated hereby not being in the best interest of ConocoPhillips or its stockholders.
(b) The foregoing conditions are for the sole benefit of Old Hertz Holdings ConocoPhillips and shall not give rise to or create any duty on the part of ConocoPhillips or the Old Hertz Holdings ConocoPhillips Board to waive or not waive such conditions or in any way limit the ConocoPhillips’ right of termination of to terminate this Agreement as set forth in Section 8.3 Article VI or alter the consequences of any such termination from those specified in Section 8.3such Article. Any determination made by the Old Hertz Holdings ConocoPhillips Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusive.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Phillips 66), Separation and Distribution Agreement (Phillips 66)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms (a) The consummation of the Distribution if, for example, it determines that will be subject to the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations satisfaction of the parties conditions set forth in this Section 2.03; any determination by Altria regarding the satisfaction of any of such conditions will be conclusive:
(i) All material governmental approvals and material consents necessary to consummate the Distribution shall have been received and continue to be conditioned in full force and effect;
(ii) No order, injunction, decree or regulation issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect and no other event outside the control of Altria shall have occurred or failed to occur that prevents the consummation of the Distribution;
(iii) The PMI Common Stock to be distributed in the Distribution shall have been accepted for listing on the satisfactionNew York Stock Exchange, or waiver by the Old Hertz Holdings Board (except with respect subject to clauses (d) and (e) below), official notice of the following conditions:issuance.
(aiv) The private letter ruling that Old Hertz Holdings Altria received from the Internal Revenue Service to regarding the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a taxTax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, Free Status shall not have been revoked or modified in any material respect and Altria shall have received confirmation from its Tax Advisor that its opinion regarding the Tax-Free Status continues in effect as of the Distribution Date;
(v) A Registration Statement on Form 10 registering PMI’s Common Stock shall be effective under the Securities Exchange Act, with no stop order in effect with respect thereto, and the Information Statement included therein shall have been mailed to Altria’s stockholders; and
(vi) The actions and filings necessary under securities and blue sky laws of the states of the United States and any comparable laws under any foreign jurisdictions shall have been taken and become effective.
(b) Old Hertz Holdings shall have received In the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by event any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions condition set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) this Section 2.03 shall not have been completed. The foregoing conditions satisfied or is likely not to be satisfied on or before March 14, 2008, Altria’s Board of Directors may only be waived by postpone the Old Hertz Holdings Board, Record Date and/or the Distribution Date in its sole and absolute discretion. In the event the Distribution Date is for any reason postponed more than 120 days after the date hereof, are for the sole benefit of Old Hertz Holdings and it shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior be an additional condition to the Distribution concerning that Altria’s Board of Directors shall have redetermined, as of such postponed Distribution Date, that the satisfaction or waiver of any or all Distribution satisfies the requirements of the conditions set forth in this Section 3.2 shall be conclusiveVirginia Stock Corporation Act governing distributions.
Appears in 2 contracts
Sources: Distribution Agreement (Philip Morris International Inc.), Distribution Agreement (Altria Group, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Myriad and shall not give rise to or create any duty on the part of Myriad or the Old Hertz Holdings Board of Directors of Myriad to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Commission, with no stop order in effect with respect thereto;
(b) All permits, registrations and consents required under the securities or blue sky laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have been obtained and be in full force and effect;
(c) The Internal Revenue Service shall have issued of a favorable Private Letter Ruling ruling that the Distribution, and other related internal steps, is a tax-free distribution for U.S. federal income tax purposes;
(d) All material government approvals and other consents necessary to consummate the Distribution shall have been obtained and be in full force and effect;
(e) No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect and no other event outside the control of Myriad shall have occurred or failed to occur that prevents the consummation of the Distribution;
(f) The Board prior of Directors of Myriad and MPI shall have obtained an opinion from a nationally recognized appraisal, valuation and investment banking firm, in a form reasonably satisfactory to the Parties, substantially to the effect that each of MPI and Myriad will be solvent and adequately capitalized immediately after the Distribution concerning and Myriad has sufficient surplus under the satisfaction Laws of Delaware to distribute the MPI Common Stock;
(g) The Board of Directors of Myriad shall have authorized and approved the Distribution and not withdrawn such authorization and approval;
(h) All Ancillary Agreements shall have been entered into by the Parties; and
(i) No other events or waiver of any or all developments shall have occurred that, in the sole discretion of the conditions set forth Board of Directors of Myriad, would result in this Section 3.2 shall be conclusivethe Distribution having a material adverse effect on Myriad or on the stockholders of Myriad or not being in the best interest of Myriad and its stockholders.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Myriad Pharmaceuticals, Inc.), Separation and Distribution Agreement (Myriad Pharmaceuticals, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the The obligations of the parties Parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below)MetLife board of directors, or an applicable committee thereof, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from MetLife board of directors shall, in its sole and absolute discretion, have authorized and approved the Internal Revenue Service to Corporate Reorganization, any other transfers and assumptions of liabilities contemplated by this Agreement, the effect thatTransaction Documents and any related agreements, subject to the accuracy of Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Datewithdrawn such authorization and approval.
(b) Old Hertz Holdings The MetLife board of directors shall have received declared the opinions dividend of its Tax Advisors that Company Common Stock to the Distributions will qualify Record Holders, such dividend to be paid to the Record Holders as tax-free transactions under Section 355 part of the Code, subject Distribution pursuant to the accuracy of terms and compliance with certain representations, assumptions and covenantsconditions set forth herein.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Registration Statement on Form 10 in respect of the Distribution, of which the Information Statement is a part, effective under the Exchange Act, no stop order suspending the effectiveness of the such Registration Statement on Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(ed) All statutory requirements for the consummation The notice of internet availability of the Distributions Information Statement shall have been satisfied, and no injunction, court order, Law or regulation mailed to MetLife’s stockholders as contemplated by any Governmental Authority shall be in effect preventing the completion of the DistributionsSection 3.2(c).
(fe) The Internal Reorganization applicable national securities exchange approved by the MetLife board of directors, or an applicable committee thereof, for listing of the Company Common Stock shall have been completed and HERC shall have entered into accepted the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Company Common Stock for listing, subject to official notice of issuance.
(f) The Corporate Reorganization shall have been completed.
(g) The private letter ruling that MetLife received from the Internal Revenue Service regarding certain significant issues under the Code relating to the transaction will not have been revoked or modified in any material respect as of the Closing Date.
(h) Any material Consents necessary for MetLife shall have received an opinion from its Tax Advisor, in form and substance satisfactory to MetLife in its sole and absolute discretion, that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, the Distribution must have been obtainedwill qualify for non-recognition of gain or loss to MetLife and MetLife’s stockholders pursuant to Section 355 of the Code, without any conditions except to the extent of cash received in lieu of fractional shares.
(i) No order, injunction or decree that would prevent the consummation of the Distribution shall be threatened, pending or issued (and still in effect) by any Governmental Authority of competent jurisdiction, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of MetLife shall have occurred or failed to occur that prevents the consummation of the Distribution.
(j) No other events or developments shall have occurred prior to the Distribution that, in the judgment of the MetLife board of directors, or an applicable committee thereof, would result in the Distribution having a material adverse effect on HERC Holdings MetLife or New Hertz Holdingsthe MetLife stockholders.
(ik) The actions set forth in Sections 3.1(b3.2(b), (dc), (h), (i), (jg) and (kh) and Section 3.3 shall have been completed. The foregoing conditions may only be waived only by the Old Hertz Holdings BoardMetLife board of directors, or an applicable committee thereof, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings MetLife and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board MetLife board of directors, or any applicable committee thereof, to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 8.6 or alter the consequences of any such termination from those specified in Section 8.38.6. Any determination made by the Old Hertz Holdings Board MetLife board of directors prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.4 shall be conclusive.
Appears in 2 contracts
Sources: Master Separation Agreement (Metlife Inc), Master Separation Agreement (Brighthouse Financial, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.54.04, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after shall be subject to the consummation satisfaction or waiver of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 following conditions which satisfaction or waiver shall be in effect, and no proceedings for such purpose shall be pending before or threatened determined by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, CS in its sole discretion and absolute discretion, which conditions are for the sole benefit of Old Hertz Holdings the Cadbury plc Group and shall not give rise to or create any duty on the part of CS or the Old Hertz Holdings Board board of directors of CS to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Board SEC, with no stop order in effect with respect thereto, and the Information Statement shall have been mailed to the holders of CS Ordinary Shares;
(b) The DPS Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(c) Any Governmental Approvals shall have been obtained and be in full force and effect;
(d) The Scheme shall have been sanctioned by the Court and office copies of the Scheme Court Orders shall have been registered by the UK Registrar of Companies at Companies House;
(e) The Cadbury plc Ordinary Shares shall have been (i) admitted to the official list of the UKLA and (ii) admitted to trading on the London Stock Exchange’s main market for listed Securities;
(f) Cadbury plc shall have received the Court Order approving the Reduction and such Court Order shall have been delivered to the UK Registrar of Companies and been registered by him;
(g) No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution or any of the transactions related thereto, including the transfers of Assets and Assumption of Liabilities contemplated by this Agreement, shall be in effect;
(h) CS shall have completed the contribution/transfer of the Beverages Business to DPS;
(i) The financing transactions described in the Information Statement as having occurred prior to the Distribution concerning shall have been consummated on or prior to the satisfaction Distribution;
(j) There shall not have occurred an event or waiver of any or all development that, in the opinion of the conditions set forth board of directors of CS, in this Section 3.2 its sole and absolute discretion, would result in the Distribution having a material adverse effect on CS or any of its Subsidiaries or CS’ shareholders; and
(k) The Ancillary Agreements shall be conclusivehave been entered into by the applicable Parties.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.), Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, The FAF Board shall in its discretion establish the Old Hertz Holdings Board has sole Record Date and absolute discretion to at any time and from time to time until the Distribution decide to abandon Date and all appropriate procedures in connection with the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings StockholdersDistribution. In addition, the obligations of the parties to consummate the The Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect subject to clauses (d) and (e) below), satisfaction of each of the following conditions:
, among other things: (a) The the consummation of the Reorganization in accordance with SECTION 3.1 hereof and certain internal corporate reorganizations; (b) the renegotiation of certain FAF credit facilities and debt instruments, including the execution of certain consents, waivers and amendments thereto by lenders, all on terms satisfactory to the Board of Directors of FAF; (c) the establishment of separate credit facilities for the Company and FAF on terms satisfactory to the Board of Directors of the Company and FAF; (d) the receipt of certain third-party consents relating to certain contracts, licenses and the Other Agreements; (e) receipt by FAF of a private letter ruling that Old Hertz Holdings received from the Internal Revenue Service IRS to the effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions distribution for Federal income tax purposes under Section 355 of the Code, subject to or at the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation option of the Distribution and each FAF Board, an opinion of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is special tax counsel to FAF, in form and substance acceptable satisfactory to Old Hertz Holdings.
the FAF Board, to the effect that, among other things, the Distribution will constitute such a tax-free distribution under Section 355 of the Code; (df) The SEC shall have declared the Form 10 having become effective under the Exchange Act, and no stop order suspending being in effect; (g) there not being in effect any statute, rule, regulation or order of any court, governmental or regulatory body that prohibits or makes illegal the effectiveness transactions contemplated by the Distribution; and (h) approval for listing of the Form 10 shall be Company Common Stock on The Nasdaq Stock Market. The FAF Board reserves the right in effectits discretion, and no proceedings for such purpose shall be pending before or threatened by the SEC.
other than with respect to those set forth in clauses (a), (e) All statutory requirements for the consummation of the Distributions shall have been satisfied), and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved ), to waive the New Hertz Holdings Common Stock for listingsatisfaction of any condition to the Distribution; 3 6 provided, subject to official notice of issuance.
(h) Any material Consents necessary for however, that the FAF Board may abandon, defer or modify the Distribution must have been obtained, without and the related transactions at any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board time prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusiveDate.
Appears in 2 contracts
Sources: Distribution Agreement (Landair Corp), Distribution Agreement (Landair Corp)
Conditions to Distribution. Pursuant to Section 3.5The Distribution shall be conditioned upon the satisfaction, or the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution waiver in whole or modify or change the terms in part by Parent, of the Distribution if, for example, it determines other conditions set forth below:
(a) the Board of Directors of Parent shall have declared a distribution payable to the holders of Parent Common Stock of shares of SpinCo Common Stock and in connection with the declaration of such distribution shall have determined that the Separation declaration and payment of such distribution is not in the best interests of Old Hertz Holdings Parent and the Old Hertz Holdings Stockholders. In addition, the obligations holders of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:Parent Common Stock;
(ab) The private letter ruling that Old Hertz Holdings (i) Parent shall have received the rulings from the Internal Revenue Service requested in Parent's documents submitted to the effect that, subject Internal Revenue Service relating to the accuracy tax treatment of the Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, such rulings shall not be satisfactory to Parent in its sole and absolute discretion and no event or circumstance shall have been revoked occurred that could reasonably be expected to have any adverse effect on such rulings; or modified in any material respect (ii) Parent shall otherwise have satisfied itself as to the tax treatment of the Separation and the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.related transactions;
(c) Old Hertz Holdings all material Governmental Approvals and Consents necessary to consummate the Restructuring, the Separation and the Distribution in the manner contemplated by this Agreement and the Ancillary Agreements shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdingsbeen obtained and be in full force and effect;
(d) no order, which confirms the solvency and financial viability injunction or decree issued by any court or agency of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Restructuring, the Separation and the Distribution shall be in effect and each no other event outside the control of HERC Holdings and New Hertz Holdings after Parent shall have occurred or failed to occur that prevents the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.Distribution;
(e) All statutory requirements for the consummation of the Distributions SpinCo Constituent Documents shall have been satisfied, amended and restated as set forth in Section 3.2(g);
(f) the Registration Statement shall have become effective with the Commission under the Exchange Act and no injunction, court order, Law or regulation by any Governmental Authority stop order with respect thereto shall be in effect preventing and the completion of the Distributions.
(f) The Internal Reorganization Information Statement shall have been completed mailed to all Parent stockholders of record as of the Record Date and HERC the requisite waiting period between such mailing and the Distribution Date shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.expired;
(g) The NYSE the SpinCo Common Stock to be delivered in the Distribution shall have been approved for listing on the New Hertz Holdings Common Stock for listingNasdaq NMS, subject to official notice of issuance.;
(hi) Any the Restructuring shall have been completed and (ii) the transfer of Assets and the assumption of Liabilities contemplated by this Agreement in connection with the Separation shall have been effected in all material Consents respects;
(i) the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(j) With respect to each Existing Financing Facility, Parent shall either (i) have obtained any consent, waiver or amendment necessary for to avoid any default, event of default, penalty or other adverse consequence under such Existing Financing Facility that would otherwise occur as a result of the Separation, the Distribution must or any other action or event contemplated by this Agreement or any Ancillary Agreement or (ii) have refinanced such Existing Financing Facility by terminating and replacing such Existing Financing Facility, in each case on terms satisfactory to Parent;
(k) Parent shall have been released from its obligations under each Parent Guarantee on terms satisfactory to Parent;
(l) the SpinCo New Credit Facility shall be in effect and all conditions to borrowing thereunder (other than any conditions concerning consummation of the Distribution and the transfer of Assets and Liabilities described hereunder) shall have been satisfied;
(m) SpinCo shall have effected the Stock Split; and
(n) after giving effect to all Governmental Approvals and Consents obtained, the consummation of the Separation and the Distribution shall not violate, conflict with, result in a breach of any provision under, constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate or result in a right of acceleration of the performance required by, or require any conditions that approval, waiver or consent under, any contract, indenture or other financing agreement or plan of Parent, except in each case as would not have a material adverse effect on HERC Holdings the Parent Group or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedthe Eldercare Group. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Parent and shall not give rise to or create any duty on the part of Parent or the Old Hertz Holdings Parent Board of Directors to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusivecondition.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Genesis Healthcare Corp), Separation and Distribution Agreement (Genesis Healthcare Corp)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole QUALCOMM and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties Leap shall be obligated to consummate the Distribution shall be conditioned on no later than September 27, 1998, subject to the satisfaction, or waiver by the Old Hertz Holdings QUALCOMM Board (except with respect to clauses (d) and (e) below)of Directors in its sole discretion, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service any material Governmental Approvals and Consents necessary to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) consummate the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified obtained and be in any material respect as of the Distribution Date.full force and effect;
(b) Old Hertz Holdings shall have received the opinions no order, injunction or decree issued by any court or agency of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect and each no other event outside the control of HERC Holdings and New Hertz Holdings after QUALCOMM shall have occurred or failed to occur that prevents the consummation of the Distribution;
(c) the Board of Directors of QUALCOMM shall have (i) authorized and approved the Distribution and not withdrawn such authorization and approval; (ii) received the opinion of Lehm▇▇ ▇▇▇thers described in the Form 10; (iii) received an opinion from Delaware counsel, selected by QUALCOMM in its sole discretion, regarding the appropriateness of the QUALCOMM Board of Directors' determination as to whether statutory surplus is legally available to effect the Distribution under Section 170 of the Delaware General Corporation Law; and (iv) received an opinion in such form and substance as is reasonably acceptable to Old Hertz Holdings.QUALCOMM (the "Investment Company Opinion"), from Will▇▇▇ ▇▇▇▇ ▇▇▇ Gall▇▇▇▇▇ ▇▇ other counsel selected by QUALCOMM in its sole discretion, to the effect that (a) Leap has filed an application under Section 3(b)(2) of the Investment Company Act of 1940, as amended (the "Investment Company Act"), for an order of the Commission finding and declaring Leap to be primarily engaged in a business other than investing, reinvesting, owning, holding or trading in securities either directly or through majority-owned subsidiaries or controlled companies conducting similar types of businesses, (b) the filing of such application by Leap shall exempt Leap for a period of sixty (60) days from all provisions of the Investment Company Act applicable to investment companies as such, (c) Leap is not (with such qualifications or other modifications of terms acceptable to QUALCOMM) an investment company within the meaning of the Investment Company Act;
(d) The SEC All Ancillary Agreements shall have declared been entered into by the Form 10 effective respective parties thereto, and all conditions precedent to borrowing amounts under the Exchange Act, no stop order suspending Credit Facility shall be satisfied or waived by the effectiveness lenders thereunder;
(e) the executive officers and members of the Board of Directors of Leap listed in the section entitled "Management" in the Form 10 shall be have resigned from QUALCOMM in effectevery capacity in which they served QUALCOMM prior to the Distribution, including without limitation as officer, director, committee member, employee and/or consultant (excluding, however, any continuing consulting arrangement described in the Form 10) and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions arrangements shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.QUALCOMM pursuant to the
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Leap Wireless International Inc), Separation and Distribution Agreement (Leap Wireless International Inc)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the The obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below)Northrop Grumman Board, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from Northrop Grumman Board shall, in its sole and absolute discretion, have authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code not withdrawn such authorization and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Dateapproval.
(b) Old Hertz Holdings The New NGC Board shall have received declared the opinions dividend of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject HII Common Stock to the accuracy of and compliance with certain representations, assumptions and covenantsRecord Holders.
(c) Old Hertz Holdings Each Ancillary Agreement shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and been executed by each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdingsparty thereto.
(d) The SEC shall have declared the Form 10 effective under the Exchange Acteffective, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions The HII Common Stock shall have been satisfiedaccepted for listing on the NYSE or another national securities exchange approved by the Northrop Grumman Board, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion subject to official notice of the Distributionsissuance.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transferscompleted.
(g) The NYSE New NGC shall have approved received the New Hertz Holdings Common Stock IRS Ruling and the Opinion, each of which shall remain in full force and effect, that the Holding Company Reorganization, the Internal Reorganization, and the Distribution will qualify for listing, subject to official notice of issuanceTax-Free Status.
(h) Any material Consents necessary for HII shall have (i) entered into the Distribution must have been obtainedHII Credit Facility, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings(ii) received the net proceeds from the HII Debt and (iii) made the HII Contribution.
(i) No order, injunction or decree that would prevent the consummation of the Distribution shall be threatened, pending or issued (and still in effect) by any Governmental Authority of competent jurisdiction, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of NGC shall have occurred or failed to occur that prevents the consummation of the Distribution.
(j) No other events or developments shall have occurred prior to the Distribution that, in the judgment of the Northrop Grumman Board, would result in the Distribution having a significant adverse effect on Northrop Grumman or the Northrop Grumman Stockholders.
(k) The actions set forth in Sections 3.1(b), (d3.1(c), (h), (i), (j) and (ki) shall have been completed.
(l) HII shall have delivered to New NGC a certificate signed by the chief financial officer of HII, dated as of the Distribution Date, certifying that the HII Entities have complied with Section 2.7(a). The foregoing conditions may only be waived by the Old Hertz Holdings Northrop Grumman Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Northrop Grumman and shall not give rise to or create any duty on the part of the Old Hertz Holdings Northrop Grumman Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 Article IX or alter the consequences of any such termination from those specified in Section 8.3Article IX. Any determination made by the Old Hertz Holdings Northrop Grumman Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.), Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.54.5, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after (which, to the consummation of the Distribution and is extent permitted by applicable Law, may be waived, in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Actwhole or in part, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, SPX in its sole and absolute discretion, ). The conditions are for the sole benefit of Old Hertz Holdings SPX and shall not give rise to or create any duty on the part of SPX or the Old Hertz Holdings Board of Directors of SPX to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board SPX prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 4.6 shall be conclusiveconclusive and binding on the Parties hereto.
(a) The Form 10 shall have been declared effective by the Commission, with no stop order in effect with respect thereto, and the Information Statement shall have been mailed to SPX’s stockholders as of the Record Date;
(b) The Flowco Common Stock to be delivered to the SPX stockholders in the Distribution shall have been approved for listing on the NYSE, subject to official notice of distribution;
(c) SPX shall have obtained from Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (or other outside tax counsel of national standing) an opinion that is consistent with SPX’s intent that the separation be tax-free to SPX and SPX shareholders for U.S. federal income tax purposes;
(d) All permits, registrations and consents required under the securities or blue sky Laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have been obtained and be in full force and effect;
(e) No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution or any of the transactions related thereto, including the Transfer of Assets and assumption of Liabilities pursuant to Article II, shall be in effect, and no other event outside the control of SPX shall have occurred or failed to occur that prevents the consummation of the Distribution or any of the related transactions;
(f) The Reorganization shall have been effectuated in accordance with the Reorganization Step Plan;
(g) Each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(h) All Governmental Approvals necessary to consummate the Distribution shall have been obtained and be in full force and effect;
(i) The Flowco Financing Arrangements and the Infrastructurco Financing Arrangements shall have been executed and delivered and the proceeds thereof shall have been (or substantially concurrently will be) received by Flowco and Infrastructurco, as applicable;
(j) The Board of Directors of SPX shall have received an opinion of a solvency opinion provider of national standing, in form and substance satisfactory to the Board of Directors of SPX (in its sole and absolute discretion) with respect to the solvency, capital adequacy and sufficiency of surplus of each of Infrastructurco and Flowco after giving effect to the Separation; and
(k) No events or developments shall have occurred or exist that, in the judgment of the Board of Directors of SPX, in its sole and absolute discretion, make it inadvisable to effect the Distribution or the other transactions contemplated hereby, or would result in the Distribution or the other transactions contemplated hereby not being in the best interest of SPX or its stockholders.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (SPX Corp), Separation and Distribution Agreement (SPX FLOW, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings ParentCo and shall not give rise to or create any duty on the part of ParentCo or the Old Hertz Holdings Board of Directors of ParentCo to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Board prior to SEC, with no stop order in effect with respect thereto;
(b) All permits, registrations and consents required under the securities or blue sky laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Separation and the Distribution concerning shall have been obtained and be in full force and effect;
(c) All material Government Approvals and other consents necessary to consummate the satisfaction Separation and the Distribution shall have been obtained and be in full force and effect;
(d) No order, injunction or waiver decree issued by any court or agency of any competent jurisdiction or all other legal restraint or prohibition preventing the consummation of the conditions set forth in this Section 3.2 Separation and the Distribution shall be conclusivein effect and no other event outside the control of ParentCo shall have occurred or failed to occur that prevents the consummation of the Distribution;
(e) The Board of Directors of ParentCo shall have authorized and approved the Distribution and not withdrawn such authorization and approval;
(f) The Board of Directors of ParentCo shall have approved the basis of the determination of the Selected Liabilities and categories of assets and liabilities included in both the Opening SpinCo Balance Sheet and the ParentCo Consolidated Balance Sheet.
(g) The SpinCo Common Shares to be delivered in the Distribution shall have been approved for listing on the Exchange;
(h) ParentCo shall have completed the Transfer of SpinCo Assets and transfer of SpinCo Employees to SpinCo, and the Assumption of all the SpinCo Liabilities by SpinCo shall be completed;
(i) All Ancillary Agreements shall have been entered into by the Parties and all other Parties thereto, as applicable, and shall remain in full force and effect; and
(j) No other events or developments shall have occurred that, in the sole discretion of the Board of Directors of ParentCo, would result in the Distribution having a material adverse effect on ParentCo or on the stockholders of ParentCo or not being in the best interest of ParentCo and its stockholders.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Theravance Inc), Separation and Distribution Agreement (Theravance Biopharma, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the The obligations of the parties Parties to consummate the Distribution shall will be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below)Timken Board, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from Timken Board shall, in its sole and absolute discretion, have authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code not withdrawn such authorization and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Dateapproval.
(b) Old Hertz Holdings The Timken Board shall have received declared the opinions dividend of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject TimkenSteel Common Shares to the accuracy of and compliance with certain representations, assumptions and covenantsRecord Holders.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(gd) The NYSE or another national securities exchange approved by the Timken Board shall have approved accepted the New Hertz Holdings TimkenSteel Common Stock Shares for listing, subject to official notice of issuance.
(e) The Reorganization shall have been completed.
(f) Timken shall have received an opinion from its Tax Advisor, in form and substance satisfactory to Timken in its sole and absolute discretion, that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as tax-free to TimkenSteel, Timken and Timken Shareholders (except for cash received in lieu of fractional shares) for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) and related provisions of the Code, and (ii) the Reorganization and related restructuring transactions undertaken in connection with the Separation will be tax-free to TimkenSteel, Timken and other members of the Timken consolidated Tax reporting group.
(g) The Timken Board shall have received an opinion from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Inc., in form and substance reasonably satisfactory to the Timken Board, with respect to the capital adequacy and solvency of each of Timken and TimkenSteel immediately after the Distribution.
(h) Any material Consents necessary for No order, injunction or decree that would prevent the consummation of the Distribution must shall be threatened, pending or issued (and still in effect) by any Governmental Authority of competent jurisdiction, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of Timken shall have been obtainedoccurred or failed to occur that prevents the consummation of the Distribution.
(i) No other events or developments shall have occurred prior to the Distribution that, without any conditions that in the judgment of the Timken Board, would have result in the Distribution having a material adverse effect on HERC Holdings Timken or New Hertz Holdingsthe Timken Shareholders.
(ij) The actions set forth in Sections 3.1(b), (dc), (g), (h), (i), (j) and (ki) shall have been completed. The foregoing conditions may only be waived only by the Old Hertz Holdings Timken Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Timken and shall will not give rise to or create any duty on the part of the Old Hertz Holdings Timken Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Timken Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall will be conclusive.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (TimkenSteel Corp), Separation and Distribution Agreement (TimkenSteel Corp)
Conditions to Distribution. Pursuant This Agreement and the consummation of each of the transactions provided for herein shall be subject to Section 3.5, approval of the Old Hertz Holdings Western Atlas Board. The Western Atlas Board has sole shall in its discretion establish the Record Date and absolute discretion to at any time and from time to time until the Distribution decide to abandon Date and all appropriate procedures in connection with the Distribution, but in no event shall the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties Date occur prior to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), such time as each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from have occurred or have been waived by the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, Western Atlas Board in its sole discretion: (i) the Western Atlas Board shall have formally approved the Distribution; (ii) the Form 10 shall have been declared effective by the Commission; (iii) Western Atlas shall have received a statement from the Staff of the Commission that the Distribution may be effected without registration of the UNOVA Common Stock under the Securities Act of 1933; (iv) the Western Atlas Board shall have received opinions of counsel satisfactory to it that the Distribution will qualify as be a tax-free transaction "spin-off" under Sections 355 and and/or 368(a)(1)(D) of the Code and Code; (iiv) the internal spin-off transactions (collectively with the DistributionBoard of Directors of UNOVA, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactionsconstituted as contemplated by Section 3.4, shall not have been revoked or modified duly elected, and the Certificate of Incorporation and the By-laws of UNOVA, as described in any material respect as of the Distribution Date.
(b) Old Hertz Holdings Section 3.5, shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of been adopted and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect; (vi) the UNOVA Common Stock shall have been authorized for listing on the NYSE; (vii) the transactions contemplated by Sections 3.1, 3.2 and 3.3 shall have been consummated in all material respects; (viii) UNOVA shall have arranged for a bank credit facility or comparable source of funding for its capital needs; and (ix) no preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a government, regulatory or administrative agency or commission, and no proceedings for such purpose shall be pending before statute, rule, regulation or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law executive order promulgated or regulation enacted by any Governmental Authority governmental authority, shall be in effect preventing the completion payment of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into Distribution; PROVIDED that the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice satisfaction of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any such conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty obligation on the part of Western Atlas or any other party hereto to effect the Old Hertz Holdings Board to waive or not waive such conditions Distribution or in any way limit the right Western Atlas' power of termination of this Agreement set forth in Section 8.3 6.8 or alter the consequences of any such termination from those specified in Section 8.3such Section. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.3
Appears in 2 contracts
Sources: Distribution Agreement (Western Atlas Inc), Distribution Agreement (Unova Inc)
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings PDL and shall not give rise to or create any duty on the part of PDL or the Old Hertz Holdings Board of Directors of PDL to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Board prior to SEC, with no stop order in effect with respect thereto;
(b) All permits, registrations and consents required under the securities or blue sky laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Separation and the Distribution concerning shall have been obtained and be in full force and effect;
(c) All material Government Approvals and other consents necessary to consummate the satisfaction Separation and the Distribution shall have been obtained and be in full force and effect;
(d) No order, injunction or waiver decree issued by any court or agency of any competent jurisdiction or all other legal restraint or prohibition preventing the consummation of the conditions set forth in this Section 3.2 Separation and the Distribution shall be conclusivein effect and no other event outside the control of PDL shall have occurred or failed to occur that prevents the consummation of the Distribution;
(e) The Board of Directors of PDL shall have authorized and approved the Distribution and not withdrawn such authorization and approval;
(f) The Board of Directors of PDL shall have approved the basis of the determination of the Selected Liabilities and categories of assets and liabilities included in both the Opening Facet Balance Sheet and the PDL Consolidated Balance Sheet.
(g) The Facet Common Stock to be delivered in the Distribution shall have been approved for listing on the Exchange;
(h) PDL shall have completed the Transfer of Facet Assets and transfer of Facet Employees to Facet, and the Assumption of all the Facet Liabilities by Facet shall be completed;
(i) All Ancillary Agreements shall have been entered into by the Parties and shall remain in full force and effect; and
(j) No other events or developments shall have occurred that, in the sole discretion of the Board of Directors of PDL, would result in the Distribution having a material adverse effect on PDL or on the stockholders of PDL or not being in the best interest of PDL and its stockholders.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Facet Biotech Corp), Separation and Distribution Agreement (Facet Biotech Corp)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties StealthGas to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) StealthGas, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from final approval of the Internal Revenue Service to Distribution shall have been given by the effect thatBoard of Directors of StealthGas, subject to and the accuracy Board of Directors of StealthGas shall have declared the dividend of Imperial Petroleum Common Shares and compliance with certain representationsof Imperial Petroleum Preferred Shares, assumptions each such action in its sole and covenants, absolute discretion;
(ib) the Distribution will qualify as a taxRegistration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no stop-free transaction order in effect with respect thereto and the Prospectus shall have been mailed to StealthGas shareholders;
(c) the actions and filings necessary or appropriate under Sections 355 applicable federal and 368(a)(1)(D) state securities laws of the Code United States (and (iiany comparable laws under any foreign jurisdictions) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free Distribution (including, if applicable, any actions and filings relating to the parties to those spin-offs Registration Statement) and related transactions, any other necessary and applicable Consents from any Governmental Authority shall not have been revoked taken, obtained and, where applicable, have become effective or modified in any material respect been accepted, each as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.case may be;
(d) The SEC shall have declared the Form 10 effective under Imperial Petroleum Common Shares and Imperial Petroleum Preferred Shares to be delivered in the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions Distribution shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing approved for listing on the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listingNasdaq Capital Market, subject to official notice of issuance.;
(he) Any material Consents necessary for no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Pre-Distribution Transactions or the Distribution must have been obtained, without or any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) of the other transactions contemplated by this Agreement shall have been completed. The foregoing conditions may only threatened or be waived by in effect;
(g) StealthGas shall have established the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Record Date and shall have given the Nasdaq not give rise to or create any duty on the part less than ten (10) days’ advance notice of the Old Hertz Holdings Board to waive or not waive such conditions or Record Date in any way limit compliance with Rule 10b-17 under the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.Exchange Act and Nasdaq rules;
Appears in 2 contracts
Sources: Contribution and Distribution Agreement (Imperial Petroleum Inc./Marshall Islands), Contribution and Distribution Agreement (Imperial Petroleum Inc./Marshall Islands)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole Rubicon and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties DAC shall be obligated to consummate the Distribution shall be conditioned on no later than March 31, 2008 unless extended as the result of any Governmental Approvals, subject to the satisfaction, or waiver by the Old Hertz Holdings Rubicon Board (except with respect to clauses (d) and (e) below)of Directors in its sole discretion, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service any material Governmental Approvals and Consents necessary to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) consummate the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified obtained and be in any material respect as of the Distribution Date.full force and effect;
(b) Old Hertz Holdings shall have received the opinions no order, injunction or decree issued by any court or agency of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect and each no other event outside the control of HERC Holdings and New Hertz Holdings after Rubicon shall have occurred or failed to occur that prevents the consummation of the Distribution;
(c) the Board of Directors of Rubicon shall have authorized and approved the Distribution and is in form not withdrawn such authorization and substance acceptable to Old Hertz Holdings.approval;
(d) The SEC the Board of Director of DAC shall have declared authorized and approved all corporate actions in order for Rubicon to accomplish the Form 10 effective under Distribution, including increasing the Exchange Act, no stop order suspending number of outstanding shares of DAC Common Stock to comply with the effectiveness of the Form 10 shall be Distribution ratio set forth in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.Section 3.1(b);
(e) All statutory requirements for the consummation of the Distributions Ancillary Agreements shall have been satisfied, and no injunction, court order, Law or regulation entered into by any Governmental Authority shall be in effect preventing the completion of the Distributions.respective parties thereto;
(f) The Internal Reorganization arrangements shall have been completed made to the satisfaction of Rubicon for the complete and HERC shall have entered into orderly transition of employment of all other Persons designated by the HERC Credit Facility and HERC Financing Arrangements and completed parties as those Rubicon employees who are to become DAC employees as of or prior to the HERC Cash Transfers.Distribution; and
(g) The NYSE no other events or developments shall have approved occurred that, in the New Hertz Holdings Common Stock for listingjudgment of the Board of Directors of Rubicon, subject to official notice of issuance.
(h) Any material Consents necessary for would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings Rubicon or New Hertz Holdings.
(i) The actions set forth on the stockholders of Rubicon or not being in Sections 3.1(b), (d), (h), (i), (j) the best interest of Rubicon and (k) shall have been completedits stockholders. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Rubicon and shall not give rise to or create any duty on the part of Rubicon or the Old Hertz Holdings Rubicon Board of Directors to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusivecondition.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Rubicon Financial Inc)
Conditions to Distribution. Pursuant (a) The following shall be conditions to Section 3.5Chugai's obligation to effect the Distribution:
(i) the Registration Statement shall have been filed and declared effective by the Commission, and no suspension, withdrawal or stop-order shall be in effect with respect thereto and no proceeding for that purpose shall have been instituted by the Old Hertz Holdings Board has Commission;
(ii) Chugai shall be satisfied in its sole and absolute discretion to at any time and from time to time until that as of the Distribution decide Date it will have no further liability or obligation whatsoever as a guarantor of Gen-Probe's Liabilities under the Note Agreement and the Gen-Probe Notes;
(iii) the actions and filings with regard to abandon state securities and blue sky laws of the United States (and any comparable laws under any foreign jurisdictions) described in Section 3.01(d) shall have been taken and, where applicable, have become effective or been accepted;
(iv) the Gen-Probe Common Stock to be distributed in the Distribution shall have been accepted for quotation and trading on the NASDAQ, on official notice of distribution;
(v) no order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution or modify or change the terms any of the Distribution if, for example, it determines that the Separation is not other transactions contemplated by this Agreement or any Ancillary Agreement shall be in the best interests of Old Hertz Holdings effect;
(vi) any material Consents and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties Governmental Approvals necessary to consummate the Distribution shall have been obtained and be conditioned in full force and effect;
(vii) no other events or developments shall have occurred subsequent to the date hereof that, in the judgment of Chugai, would result in the Distribution having an adverse effect on Chugai or on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), stockholders of the following conditions:Chugai; and
(aviii) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, this Agreement shall not have been revoked or modified in any material respect as of the Distribution Dateterminated.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Chugai and shall not give rise to or create any duty on the part of the Old Hertz Holdings Chugai or Chugai's Board of Directors to waive or not waive such conditions or in any way limit the Chugai's right of termination of to terminate this Agreement as set forth in Section 8.3 Article IX or alter the consequences of any such termination from those specified in Section 8.3such Article or to be indemnified pursuant to Article IV for any matter. Any determination made by the Old Hertz Holdings Board Chugai prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.05 shall be conclusive.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Gen Probe Inc)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties Belo to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) Belo, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from final approval of the Internal Revenue Service to Distribution shall have been given by the effect thatBoard of Directors of Belo, subject to and the accuracy Board of Directors of Belo shall have declared the dividend of Newspaper Holdco Common Stock, each such action in its sole and compliance with certain representations, assumptions and covenants, absolute discretion;
(ib) the Distribution will qualify as a taxRegistration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no suspension, withdrawal or stop-free transaction order in effect with respect thereto and no proceeding for that purpose shall have been instituted by the SEC;
(c) the Information Statement shall have been mailed to Belo shareholders, which for purposes of this Section 3.03(c) includes electronic delivery where not prohibited by Law;
(d) the actions and filings necessary or appropriate under Sections 355 applicable federal and 368(a)(1)(D) state securities laws and state blue sky laws of the Code United States (and (iiany comparable laws under any foreign jurisdictions) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free Distribution (including, if applicable, any actions and filings relating to the parties to those spin-offs Registration Statement) and related transactions, any other necessary and applicable Consents shall not have been revoked taken, obtained and, where applicable, have become effective or modified in any material respect been accepted, each as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.case may be;
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Series A Newspaper Holdco Common Stock Stock, including the Preferred Share Purchase Rights attached thereto, to be delivered in the Distribution for listing, subject to official notice of issuance.;
(f) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition, which remains in effect, preventing the consummation of the Separation or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(g) Belo shall have received a tax opinion from ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to Belo, to the effect that the distribution of Newspaper Holdco’s Common Stock will qualify as a distribution that is tax free under Section 355 of the Code, and the private letter ruling issued to Belo by the Internal Revenue Service regarding the tax free status of the transactions contemplated hereunder shall be in form and substance satisfactory to Belo and shall not have been revoked or materially amended;
(h) Any material Consents necessary for Belo shall have established the Distribution must Record Date and shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.given the NYSE not less than ten days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) Belo’s Board of Directors shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Boardconcluded, based on advice from internal and external legal counsel, in its sole and absolute discretion, are that the Distribution will not violate or result in a breach of Law or any material agreement;
(j) all material Consents and approvals of Governmental Authorities required in connection with the transactions contemplated hereby shall have been received and be in full force and effect;
(k) the Separation and Recapitalization shall have been consummated in accordance with this Agreement;
(l) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with prior to the Effective Time;
(m) the Certificate of Incorporation shall have been filed with the Secretary of State of Delaware and be in full force and effect and the Bylaws of Newspaper Holdco shall be in full force and effect; and
(n) no other events or developments have occurred subsequent to the date of this Agreement that, in the judgment of the Board of Directors of Belo, would result in the consummation of the transactions contemplated by this Agreement having an adverse effect on Belo or its shareholders. Each of the foregoing conditions is for the sole benefit of Old Hertz Holdings Belo and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board Belo may, in its sole and absolute discretion, determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination condition (other than Section 3.03(j) (as to any material Consent from those specified in Section 8.3a Governmental Authority)). Any determination made by the Old Hertz Holdings Board Belo, in its sole and absolute discretion, prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.03 shall be conclusiveconclusive and binding on the Parties. Each Party will use commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 1 contract
Sources: Separation and Distribution Agreement (A. H. Belo CORP)
Conditions to Distribution. Pursuant Subject to Section 3.53.4, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, for example, it determines that the Separation is not in the best interests Distribution. The obligation of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties iGATE to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) iGATE, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from iGATE shall enter into a distribution agent agreement with the Internal Revenue Service to Agent (the effect that“Distribution Agent Agreement ”) providing for, subject to the accuracy of and compliance with certain representations, assumptions and covenantsamong other things, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) payment of the Code Distribution to the holders of iGATE Common Stock in accordance with this Article III and the Distribution Agent Agreement, and (ii) the internal spindesignation of Mastech as a third party beneficiary. iGATE and Mastech shall deliver to the Distribution Agent (i) book-off transactions (collectively with entry transfer authorizations for all of the Distribution, the “Distributions”) and certain related transactions outstanding shares of Mastech Common Stock to be distributed in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as payment of the Distribution and (ii) all information required to complete the Distribution on the basis set forth herein and under the Distribution Agent Agreement. Following the Distribution Date, upon the request of the Distribution Agent, Mastech shall provide to the Distribution Agent book-entry transfer authorizations of Mastech Common Stock that the Distribution Agent shall require in order to further effect the Distribution.
(b) Old Hertz Holdings The Form 10 shall have received been declared effective by the opinions Commission, with no stop order in effect with respect thereto;
(c) The Mastech Common Stock to be delivered in the Distribution shall have been approved for listing on the AMEX, subject to official notice of distribution;
(d) On or prior to the Effective Time, all necessary actions shall be taken to adopt the form of certificate of incorporation and by-laws filed by Mastech with the Commission as exhibits to the Form 10.
(e) On or prior to the Effective Time, iGATE and Mastech shall take all necessary action to cause Mastech to form its Board of Directors.
(f) On or prior to the Effective Time, (i) iGATE shall cause all of its Tax Advisors employees and any employees of its Affiliates who will become a Mastech Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the iGATE Group in which they serve, unless such person will continue as a director of iGATE after the Effective Time, and (ii) Mastech shall cause all of its employees and any employees of its Affiliates who will become an iGATE Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Mastech Group in which they serve, unless such person will continue as a director of Mastech after the Effective Time. No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the Information Statement as the Person who is to hold such position or office following the Distribution.
(g) On or prior to the Effective Time, iGATE and Mastech shall enter into, and/or (where applicable) shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.
(h) iGATE shall have obtained an opinion from ▇▇▇▇ ▇▇▇▇▇ LLP, its tax counsel, in form and substance satisfactory to iGATE (in its sole discretion), substantially to the effect that the Distributions Distribution will qualify as tax-free transactions for Federal income tax purposes under Section 355 of the Code;
(i) iGATE shall have obtained a solvency opinion from ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, subject Inc., in form and substance satisfactory to iGATE (in its sole discretion), which solvency opinion shall provide such firm’s opinion that Mastech will be solvent following the accuracy of and compliance with certain representations, assumptions and covenantsDistribution.
(cj) Old Hertz Holdings All permits, registrations and Consents required under the securities or blue sky Laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdingsbeen obtained and be in full force and effect; and
(k) No order, which confirms the solvency and financial viability injunction or decree issued by any Governmental Entity of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation or any of the Distribution transactions related thereto, including the Transfer of Assets and is in form and substance acceptable assumption of Liabilities pursuant to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActArticle II hereof, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation . Each of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are is for the sole benefit of Old Hertz Holdings iGATE and shall not give rise to or create any duty on the part of iGATE or the Old Hertz Holdings Board of Directors of iGATE to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board iGATE, in its sole and absolute discretion prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.5 shall be conclusiveconclusive and binding on the Parties.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Mastech Holdings, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the The obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below)Kraft Foods Board, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from Kraft Foods Board shall, in its sole and absolute discretion, have authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code not withdrawn such authorization and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Dateapproval.
(b) Old Hertz Holdings The Kraft Foods Board shall have received declared the opinions dividend of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject GroceryCo Common Stock to the accuracy of and compliance with certain representations, assumptions and covenantsRecord Holders.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(ed) All statutory requirements for NASDAQ or another national securities exchange approved by the consummation of the Distributions Kraft Foods Board shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing accepted the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings GroceryCo Common Stock for listing, subject to official notice of issuance.
(e) The Internal Reorganization shall have been completed.
(f) The private letter ruling that Kraft Foods Inc. received from the Internal Revenue Service (“IRS”), to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants (i) the Contribution and Internal Distribution will qualify for non-recognition of gain or loss to SnackCo and GroceryCo pursuant to Sections 368 and 355 of the Code (except to the extent the IRS generally will not rule on certain transfers of intellectual property, which will be covered solely by the opinion of Kraft Foods Inc.’s Tax Advisor) and (ii) the Distribution will qualify for non-recognition of gain or loss to Kraft Foods Inc. and the Kraft Foods Shareholders pursuant to Section 355 of the Code, except to the extent of cash received in lieu of fractional shares, will not have been revoked or modified in any material respect as of the Distribution Date.
(g) Kraft Foods Inc. shall have received an opinion from its Tax Advisor, in form and substance satisfactory to Kraft Foods Inc. in its sole and absolute discretion, that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Contribution and Internal Distribution will qualify for non-recognition of gain or loss to Kraft Foods Inc. and GroceryCo pursuant to Sections 368 and 355 of the Code and (ii) the Distribution will qualify for non-recognition of gain or loss to Kraft Foods Inc. and the Kraft Foods Shareholders pursuant to Section 355 of the Code, except to the extent of cash received in lieu of fractional shares.
(h) Any Kraft Foods Inc. shall have received an advance income tax ruling from the Canada Revenue Agency (“CRA”), in form and substance satisfactory to Kraft Foods Inc. in its sole and absolute discretion, to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants and based on the current provisions of the Income Tax Act (Canada) (the “Canadian Tax Act”), the separation of the assets and liabilities in Canada held in connection with the SnackCo Business from the assets and liabilities in Canada held in connection with the GroceryCo Business will be treated for purposes of the Canadian Tax Act as resulting in a “butterfly” reorganization with no material Consents necessary for Canadian federal income tax payable by SnackCo’s Canadian subsidiary, GroceryCo’s Canadian subsidiary or their respective shareholders, and that advance income tax ruling will remain in effect as of the Distribution must Date.
(i) The Kraft Foods Board shall have been obtainedreceived an opinion from Evercore Partners, without any conditions in form and substance reasonably satisfactory to the Kraft Foods Board, with respect to the capital adequacy and solvency of each of SnackCo and GroceryCo immediately after the Distribution.
(j) No order, injunction or decree that would prevent the consummation of the Distribution shall be threatened, pending or issued (and still in effect) by any Governmental Authority of competent jurisdiction, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of Kraft Foods Inc. shall have occurred or failed to occur that prevents the consummation of the Distribution.
(k) No other events or developments shall have occurred prior to the Distribution that, in the judgment of the Kraft Foods Board, would result in the Distribution having a material adverse effect on HERC Holdings Kraft Foods Inc. or New Hertz Holdingsthe Kraft Foods Shareholders.
(il) The actions set forth in Sections 3.1(b), (dc), (g), (h), (i), (j) and (ki) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Kraft Foods Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Kraft Foods Inc. and shall not give rise to or create any duty on the part of the Old Hertz Holdings Kraft Foods Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Kraft Foods Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Kraft Foods Group, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.54.3, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, Distribution. These conditions are for example, it determines that the Separation is sole benefit of CSC and shall not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties give rise to consummate the Distribution shall be conditioned or create any duty on the satisfaction, part of CSC or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:waive or not waive any such condition.
(a) The private letter ruling that Old Hertz Holdings received from Board shall have, in its sole discretion, authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Reorganization and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) not withdrawn such authorization and approval, and shall have declared the dividend of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free Computer Sciences GS Common Stock to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.CSC stockholders;
(b) Old Hertz Holdings Each Ancillary Agreement shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.been executed by each party thereto;
(c) Old Hertz Holdings The Form 10 shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms been declared effective by the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActCommission, no stop order suspending the effectiveness of the Form 10 thereof shall be in effect, effect and no proceedings for such purpose shall be pending before or threatened by the SEC.Commission;
(d) The Computer Sciences GS Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) All statutory requirements for On or prior to the consummation Distribution Date, CSC shall have received a written opinion from Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, its tax counsel, in form and substance satisfactory to CSC (in its sole discretion) (the “Tax Opinion”), which shall remain in full force and effect, that, subject to the accuracy and completeness of the Distributions shall have been satisfiedrepresentations, warranties and no injunctioncovenants set forth in the representation letters from CSC and Computer Sciences GS accompanying such opinion, court order(i) the Internal Reorganization, Law or regulation by any Governmental Authority shall be in effect preventing taken together with the completion Distribution, should qualify as a reorganization within the meaning of Section 368(a)(1)(D) of the Distributions.Code, (ii) CSC should recognize no gain or loss under Section 361(c) of the Code upon the Distribution and (iii) CSC’s stockholders should recognize no gain or loss under Section 355(a) of the Code upon the receipt of Computer Sciences GS Stock in the Distribution;
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.completed;
(g) The NYSE No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution shall be in effect, and no other event outside the control of CSC shall have approved occurred or failed to occur that prevents the New Hertz Holdings Common Stock for listing, subject to official notice consummation of issuance.all or any portion of the Distribution;
(h) Any material Consents necessary for No other events or developments shall have occurred prior to the Effective Time that, in the judgment of the Board, would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings CSC or New Hertz Holdings.its stockholders;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), Information Statement shall have been mailed to the holders of CSC Common Stock as of the Record Date;
(j) The actions and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement events set forth in Section 8.3 or alter 3.2(b) and Section 3.2(c) shall have occurred;
(k) Prior to the consequences Effective Time, the Board shall have obtained written opinions from a nationally recognized valuation firm, in form and substance satisfactory to CSC, with respect to the capital adequacy and solvency of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior each of CSC and Computer Sciences GS after giving pro forma effect to the Distribution concerning and the satisfaction Special Dividend; and
(l) Any material Governmental Approvals and other Consents necessary to consummate the Distribution or waiver any portion thereof shall have been obtained and be in full force and effect, including, for the avoidance of any or all of doubt, the conditions set forth in this Section 3.2 shall be conclusiveGovernmental Approvals and Consents contemplated by Sections 2.8 and 2.9.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Computer Sciences Government Services Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties FNF to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) FNF, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings final approval of the Distribution shall have been given by the Board of Directors of FNF, and the Board of Directors of FNF shall have declared the dividend of JAX Common Stock, each such action in its sole and absolute discretion;
(b) the Registration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no stop-order in effect with respect thereto and the Information Statement or a notice of the internet availability thereof shall have been mailed to FNF stockholders;
(c) the actions and filings necessary or appropriate under applicable federal and state securities Laws of the United States (and any comparable Laws under any foreign jurisdictions) in connection with the Distribution (including, if applicable, any actions and filings relating to the Registration Statement) and any other necessary and applicable Consents from any Governmental Authority shall have been taken, obtained and, where applicable, have become effective or been accepted, each as the case may be;
(d) the JAX Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Pre-Distribution Transactions or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(f) FNF shall have received a tax opinion from the Internal Revenue Service KPMG LLP, in form and substance satisfactory to FNF, to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) that the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”under Sections 368(a)(1)(D) and certain related transactions 355 of the Code;
(g) FNF shall have established the Record Date and shall have given the NYSE not less than ten (10) days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act;
(h) the Distribution will not violate or result in a breach of Law or any material agreement;
(i) all material Consents required in connection with the Distributions will be tax-free transactions contemplated hereby (that are not referred to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b3.3(c), (d), (h), (i), (j) and (k) shall have been completedreceived and be in full force and effect;
(j) each of the Pre-Distribution Transactions shall have been consummated in accordance with this Agreement;
(k) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with before the Effective Time; and
(l) the Board of Directors of FNF shall have not determined (in its sole and absolute discretion) that any event or development shall have occurred or exists, or might occur or exist, that makes it inadvisable to effect the Distribution. The Each of the foregoing conditions may only be waived by is for the Old Hertz Holdings Boardsole benefit of FNF and FNF may, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board prior to FNF, in its sole and absolute discretion, before the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusiveconclusive and binding on the Parties. Each Party will use good faith efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 1 contract
Sources: Separation and Distribution Agreement (J. Alexander's Holdings, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.54.3, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, Distribution. These conditions are for example, it determines that the Separation is sole benefit of CSC and shall not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties give rise to consummate the Distribution shall be conditioned or create any duty on the satisfaction, part of CSC or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:waive or not waive any such condition.
(a) The private letter ruling that Old Hertz Holdings received from Board shall have, in its sole discretion, authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Reorganization and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) not withdrawn such authorization and approval, and shall have declared the dividend of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free Computer Sciences GS Common Stock to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.CSC stockholders;
(b) Old Hertz Holdings Each Ancillary Agreement shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.been executed by each party thereto;
(c) Old Hertz Holdings The Form 10 shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms been declared effective by the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActCommission, no stop order suspending the effectiveness of the Form 10 thereof shall be in effect, effect and no proceedings for such purpose shall be pending before or threatened by the SEC.Commission;
(d) The Computer Sciences GS Common Stock to be delivered in the Distribution shall have been approved for listing on the [NYSE] / [Nasdaq], subject to official notice of issuance;
(e) All statutory requirements for On or prior to the consummation Distribution Date, CSC shall have received a written opinion from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, its tax counsel, in form and substance satisfactory to CSC (in its sole discretion) (the “Tax Opinion”), which shall remain in full force and effect, that, subject to the accuracy and completeness of the Distributions shall have been satisfiedrepresentations, warranties and no injunctioncovenants set forth in the representation letters from CSC and Computer Sciences GS accompanying such opinion, court order(i) the Internal Reorganization, Law or regulation by any Governmental Authority shall be in effect preventing taken together with the completion Distribution, should qualify as a reorganization within the meaning of Section 368(a)(1)(D) of the Distributions.Code, (ii) CSC should recognize no gain or loss under Section 361(c) of the Code upon the Distribution and (iii) CSC’s stockholders should recognize no gain or loss under Section 355(a) of the Code upon the receipt of Computer Sciences GS Stock in the Distribution;
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.completed;
(g) The NYSE No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution shall be in effect, and no other event outside the control of CSC shall have approved occurred or failed to occur that prevents the New Hertz Holdings Common Stock for listing, subject to official notice consummation of issuance.all or any portion of the Distribution;
(h) Any material Consents necessary for No other events or developments shall have occurred prior to the Effective Time that, in the judgment of the Board, would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings CSC or New Hertz Holdings.its stockholders;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), Information Statement shall have been mailed to the holders of CSC Common Stock as of the Record Date;
(j) The actions and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement events set forth in Section 8.3 or alter 3.2(b) and Section 3.2(c) shall have occurred;
(k) Prior to the consequences Effective Time, the Board shall have obtained written opinions from a nationally recognized valuation firm, in form and substance satisfactory to CSC, with respect to the capital adequacy and solvency of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior each of CSC and Computer Sciences GS after giving pro forma effect to the Distribution concerning and the satisfaction Special Dividend; and
(l) Any material Governmental Approvals and other Consents necessary to consummate the Distribution or waiver any portion thereof shall have been obtained and be in full force and effect, including, for the avoidance of any or all of doubt, the conditions set forth in this Section 3.2 shall be conclusiveGovernmental Approvals and Consents contemplated by Sections 2.8 and 2.9.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sra International, Inc.)
Conditions to Distribution. Pursuant In the event that the Collagen Board of Directors decides to Section 3.5proceed with the Distribution, the Old Hertz Holdings Board has sole and absolute discretion parties hereto shall use their reasonable best efforts to at any time and from time satisfy the following conditions to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings StockholdersDistribution. In addition, the The obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), Collagen of the following conditions:
(a) The A private letter ruling that Old Hertz Holdings received from the Internal Revenue Service shall have been obtained, and shall continue in effect, to the effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction distribution for federal income tax purposes under Sections Section 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with transfer to Technologies of the Distribution, Technologies Assets and the “Distributions”) and certain related transactions assumption by Technologies of the Technologies Liabilities in connection with the Distributions Separation will be tax-free not result in the recognition of any gain or loss to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as member of the Distribution DateCollagen Group, any member of the Technologies Group or their respective stockholders for federal income tax purposes, and such ruling shall be in form and substance satisfactory to Collagen in its sole discretion.
(b) Old Hertz Holdings Any material Consents and Governmental Approvals necessary to consummate the Distribution shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of been obtained and compliance with certain representations, assumptions be in full force and covenantseffect.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz HoldingsNo order, which confirms the solvency and financial viability injunction or decree issued by any court or agency of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution shall be pending or in effect and each no other event outside the control of HERC Holdings and New Hertz Holdings after Collagen shall have occurred or failed to occur that prevents the consummation of the Distribution and is in form and substance acceptable to Old Hertz HoldingsDistribution.
(d) The SEC No other events or developments shall have declared occurred that, in the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness judgment of the Form 10 shall be Board of Directors of Collagen, would result in effectthe Distribution having a material adverse effect on Collagen, and no proceedings for such purpose shall be pending before on any member of the Collagen Group or threatened by on the SECstockholders of Collagen.
(e) All statutory requirements for A no-action letter from the consummation of the Distributions Commission shall have been satisfiedobtained to the effect that, after giving effect to the Separation and no injunctionthe Distribution, court orderTechnologies is not an "investment company" under the Investment Company Act of 1940, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributionsas amended.
(f) The Internal Reorganization To the extent required, a no-action letter from the Commission shall have been completed and HERC shall have entered into obtained to the HERC Credit Facility and HERC Financing Arrangements and completed effect that the HERC Cash TransfersDistribution is exempt from registration under the Securities Act.
(g) The NYSE stockholders of Collagen shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Collagen and shall not give rise to or create any duty on the part of Collagen or the Old Hertz Holdings Collagen Board of Directors to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusivecondition.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Collagen Corp /De)
Conditions to Distribution. Pursuant Subject to Section 3.54.03, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on subject to the satisfaction, satisfaction or waiver (to the extent permitted by the Old Hertz Holdings Board (except with respect to clauses (dapplicable Law) and (e) below), of the following conditions, which satisfaction or waiver (to the extent permitted by applicable Law) shall be determined by the ANV Board in its sole discretion and which conditions are for the sole benefit of the ANV Board and shall not give rise to or create any duty on the part of ANV or the ANV Board to waive (to the extent permitted by applicable Law) or not waive any such condition:
(a) The private letter ruling that Old Hertz Holdings received from ANV Meeting Resolution shall have been adopted by the Internal Revenue Service to requisite shareholder vote at the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) general meeting of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as shareholders of the Distribution Date.ANV;
(b) Old Hertz Holdings The board of directors of ATUS shall have received declared a one-time dividend of $1,500,000,000 to the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 holders of the Code, subject shares of ATUS Common Stock as of a record date prior to the accuracy of and compliance with certain representations, assumptions and covenants.Distribution Date;
(c) Old Hertz Holdings Each Transaction Document shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and been executed by each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.party thereto;
(d) The SEC Registration Statement shall have been declared effective by the Form 10 effective under the Exchange ActSEC, no stop order suspending the effectiveness of the Form 10 Registration Statement shall be in effect, effect and no proceedings for such purpose shall be pending before or threatened by the SEC.;
(e) All statutory requirements The prospectus prepared by ATUS in connection with the Distribution for the consummation purposes of Article 3 of Directive 2003/71/EC of the Distributions European Parliament and the Council has been approved by the Netherlands Authority for the Financial Markets (Stichting Autoriteit Financiële Markten);
(i) The Second Amended and Restated Certificate of Incorporation of ATUS shall have been satisfiedapproved and adopted by the affirmative vote of the holders of a majority of the aggregate voting power of all outstanding shares of capital stock of ATUS, (ii) ATUS shall have mailed or cause to be mailed to its stockholders an Information Statement on Schedule 14C with respect to such approval and adoption and the 20-day waiting period under Regulation 14C shall have elapsed, and no injunction, court order, Law (iii) ATUS shall have filed or regulation by any Governmental Authority shall caused to be in effect preventing filed with the Secretary of State of the State of Delaware the Second Amended and Restated Certificate of Incorporation following the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.20-day waiting period under Regulation 14C;
(g) There shall not be in effect any Law or any Governmental Order issued by a Governmental Authority of competent jurisdiction that enjoins or makes illegal the Separation; and
(i) The NYSE Governmental Approvals set forth on Schedule 4.04(g)(i) shall have approved been obtained and be in full force and effect, and (ii) the New Hertz Holdings Common Stock for listing, subject notices to official notice of issuance.
(hthe Governmental Authorities set forth on Schedule 4.04(g)(ii) Any material Consents necessary for the Distribution must shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdingsdelivered to each applicable Governmental Authority.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) Advisory and (k) Consulting Services Agreement shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusiveterminated.
Appears in 1 contract
Conditions to Distribution. Pursuant Subject to Section 3.54.04, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after shall be subject to the consummation satisfaction or waiver of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 following conditions which satisfaction or waiver shall be in effect, and no proceedings for such purpose shall be pending before or threatened determined by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, CS in its sole discretion and absolute discretion, which conditions are for the sole benefit of Old Hertz Holdings the Cadbury plc Group and shall not give rise to or create any duty on the part of CS or the Old Hertz Holdings Board board of directors of CS to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made condition:
(a) The Form 10 shall have been declared effective by the Old Hertz Holdings Board SEC, with no stop order in effect with respect thereto, and the Information Statement shall have been mailed to the holders of CS Ordinary Shares;
(b) The DPS Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(c) Any Governmental Approvals and any Required Consents shall have been obtained and be in full force and effect;
(d) The Scheme shall have been sanctioned by the Court and office copies of the Scheme Court Orders shall have been registered by the UK Registrar of Companies at Companies House;
(e) The Cadbury plc Ordinary Shares shall have been (i) admitted to the official list of the UKLA and (ii) admitted to trading on the London Stock Exchange’s main market for listed Securities;
(f) Cadbury plc shall have received the Court Order approving the Reduction and such Court Order shall have been delivered to the UK Registrar of Companies and been registered by him;
(g) No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution or any of the transactions related thereto, including the transfers of Assets and Assumption of Liabilities contemplated by this Agreement, shall be in effect;
(h) CS shall have completed the contribution/transfer of the Beverages Business to DPS;
(i) The financing transactions described in the Information Statement as having occurred prior to the Distribution concerning shall have been consummated on or prior to the satisfaction Distribution;
(j) There shall not have occurred an event or waiver of any or all development that, in the opinion of the conditions set forth board of directors of CS, in this Section 3.2 its sole and absolute discretion, would result in the Distribution having a material adverse effect on CS or any of its Subsidiaries or CS’ shareholders; and
(k) The Ancillary Agreements shall be conclusivehave been entered into by the applicable Parties.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties Belo to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) Belo, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from final approval of the Internal Revenue Service to Distribution shall have been given by the effect thatBoard of Directors of Belo, subject to and the accuracy Board of Directors of Belo shall have declared the dividend of Newspaper Holdco Common Stock, each such action in its sole and compliance with certain representations, assumptions and covenants, absolute discretion;
(ib) the Distribution will qualify as a taxRegistration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no suspension, withdrawal or stop-free transaction order in effect with respect thereto and no proceeding for that purpose shall have been instituted by the SEC;
(c) the Information Statement shall have been mailed to Belo shareholders, which for purposes of this Section 3.03(c) includes electronic delivery where not prohibited by Law;
(d) the actions and filings necessary or appropriate under Sections 355 applicable federal and 368(a)(1)(D) state securities laws and state blue sky laws of the Code United States (and (iiany comparable laws under any foreign jurisdictions) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free Distribution (including, if applicable, any actions and filings relating to the parties to those spin-offs Registration Statement) and related transactions, any other necessary and applicable Consents shall not have been revoked taken, obtained and, where applicable, have become effective or modified in any material respect been accepted, each as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.case may be;
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Series A Newspaper Holdco Common Stock Stock, including the Preferred Share Purchase Rights attached thereto, to be delivered in the Distribution for listing, subject to official notice of issuance.;
(f) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition, which remains in effect, preventing the consummation of the Separation or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(g) Belo shall have received a tax opinion from L▇▇▇▇ Lord B▇▇▇▇▇▇ L▇▇▇▇▇▇ LLP, in form and substance satisfactory to Belo, to the effect that the distribution of Newspaper Holdco’s Common Stock will qualify as a distribution that is tax free under Section 355 of the Code, and the private letter ruling issued to Belo by the Internal Revenue Service regarding the tax free status of the transactions contemplated hereunder shall be in form and substance satisfactory to Belo and shall not have been revoked or materially amended;
(h) Any material Consents necessary for Belo shall have established the Distribution must Record Date and shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.given the NYSE not less than ten days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) Belo’s Board of Directors shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Boardconcluded, based on advice from internal and external legal counsel, in its sole and absolute discretion, are that the Distribution will not violate or result in a breach of Law or any material agreement;
(j) all material Consents and approvals of Governmental Authorities required in connection with the transactions contemplated hereby shall have been received and be in full force and effect;
(k) the Separation and Recapitalization shall have been consummated in accordance with this Agreement;
(l) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with prior to the Effective Time;
(m) the Certificate of Incorporation shall have been filed with the Secretary of State of Delaware and be in full force and effect and the Bylaws of Newspaper Holdco shall be in full force and effect; and
(n) no other events or developments have occurred subsequent to the date of this Agreement that, in the judgment of the Board of Directors of Belo, would result in the consummation of the transactions contemplated by this Agreement having an adverse effect on Belo or its shareholders. Each of the foregoing conditions is for the sole benefit of Old Hertz Holdings Belo and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board Belo may, in its sole and absolute discretion, determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination condition (other than Section 3.03(j) (as to any material Consent from those specified in Section 8.3a Governmental Authority)). Any determination made by the Old Hertz Holdings Board Belo, in its sole and absolute discretion, prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.03 shall be conclusiveconclusive and binding on the Parties. Each Party will use commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 1 contract
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms (a) The consummation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties will be subject to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) ConocoPhillips in its sole and (e) below)absolute discretion, of the following conditions:conditions set forth in this Section 3.3
(a). Any determination by ConocoPhillips regarding the satisfaction or waiver of any of such conditions will be conclusive.
(i) The Separation shall have been completed in accordance with the Restructuring Steps Memorandum.
(ii) ConocoPhillips will have received a private letter ruling that Old Hertz Holdings received from the U.S. Internal Revenue Service substantially to the effect that, subject to among other things, the accuracy of Contribution and compliance with certain representationsthe Distribution, assumptions and covenantsif effected, (i) the Distribution taken together, will qualify as a transaction that is tax-free transaction for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code Code.
(iii) All Governmental Approvals necessary to consummate the Distribution shall have been obtained and be in full force and effect.
(iiiv) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) The actions and certain related transactions filings necessary or appropriate under applicable securities laws in connection with the Distributions Distribution will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked taken or modified in any material respect as of made, and, where applicable, have become effective or been accepted by the Distribution Dateapplicable Governmental Authority.
(bv) Old Hertz Holdings shall have received the opinions No order, injunction or decree issued by any court or agency of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation or any of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 related transactions shall be in effect, and no proceedings for such purpose other event outside the control of ConocoPhillips shall be pending before have occurred or threatened by the SEC.
(e) All statutory requirements for failed to occur that prevents the consummation of the Distributions Distribution or any of the related transactions.
(vi) A Registration Statement on Form 10 registering the ▇▇▇▇▇▇▇▇ 66 Common Stock (the “Form 10”) shall be effective under the Exchange Act, with no stop order in effect with respect thereto, and the Information Statement included therein (the “Information Statement”) shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion mailed to ConocoPhillips’ stockholders as of the DistributionsRecord Date.
(fvii) The Internal Reorganization ▇▇▇▇▇▇▇▇ 66 Common Stock to be distributed to the ConocoPhillips stockholders in the Distribution shall have been completed and HERC shall have entered into accepted for listing on the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listingNYSE, subject to official notice of issuancedistribution.
(hviii) Any material Consents necessary for Each of the Distribution must Ancillary Agreements shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdingsduly executed and delivered by the parties thereto.
(iix) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) No events or developments shall have been completed. The foregoing conditions may only be waived by occurred or exist that, in the Old Hertz Holdings judgment of the ConocoPhillips Board, in its sole and absolute discretion, make it inadvisable to effect the Distribution or the other transactions contemplated hereby, or would result in the Distribution or the other transactions contemplated hereby not being in the best interest of ConocoPhillips or its stockholders.
(b) The foregoing conditions are for the sole benefit of Old Hertz Holdings ConocoPhillips and shall not give rise to or create any duty on the part of ConocoPhillips or the Old Hertz Holdings ConocoPhillips Board to waive or not waive such conditions or in any way limit the ConocoPhillips’ right of termination of to terminate this Agreement as set forth in Section 8.3 Article VI or alter the consequences of any such termination from those specified in Section 8.3such Article. Any determination made by the Old Hertz Holdings ConocoPhillips Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusive.
Appears in 1 contract
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Parent and shall not give rise to or create any duty on the part of Parent or the Old Hertz Holdings Board of Directors of Parent to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination condition:
(a) The Form 10 shall have been filed with the Commission for the purpose of registering the Subsidiary Common Stock under the Exchange Act, with no stop order in effect with respect thereto.
(b) An information statement satisfying the requirements of Commission shall have been filed with the Commission and mailed to all holders of Parent Common Stock and Parent Common Stock Equivalents.
(c) All Government Approvals and other Consents necessary to consummate the Distribution shall have been obtained and be in full force and effect, except for any such Government Approvals or Consents the failure of which to obtain would not have material adverse effect on the business, operations or condition (financial or otherwise) of either Parent or Subsidiary.
(d) No order, injunction or decree issued by any court or agency of competent jurisdiction preventing the consummation of the Distribution shall be in effect and no other event outside the control of Parent shall have occurred or failed to occur that prevents the consummation of the Distribution.
(e) The Board of Directors of Parent shall have authorized and approved the Distribution and not withdrawn such authorization and approval.
(f) The Board of Directors of Parent shall not have reasonably determined in good faith that the Distribution would not be permitted under the Delaware General Corporation Law, as amended.
(g) Parent and Subsidiary shall have secured waivers and releases of all claims from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board current Subsidiary employees with respect the Settled Liabilities.
(h) Parent and Subsidiary shall have entered into an exchange agreement with Sovereign Partners, LP, pursuant to which, effective prior to the Distribution concerning Record Date, Sovereign Partners will exchange all shares of Subsidiary Preferred Stock which it currently owns, for shares of Parent Common Stock.
(i) Parent and Subsidiary shall have secured a waiver and release of claims from Southridge Capital Partners (“Southridge”), pursuant to which Southridge terminates and releases any security interest it may have in the satisfaction technology of Subsidiary arising from the issuance by Parent to Southridge of Preferred Stock of Parent.
(j) No other events or waiver of any or all developments shall have occurred that, in the sole discretion of the conditions set forth Board of Directors of Parent, would result in this Section 3.2 shall be conclusivethe Distribution having a material adverse effect on Parent, its stockholders or its creditors, or not being in the best interest of Parent, its stockholders and creditors.
Appears in 1 contract
Sources: Separation and Distribution Agreement (SpeechFX Inc)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to Parent shall consummate the Distribution shall be conditioned on no later than July 31, 2000 subject to the satisfaction, or waiver by the Old Hertz Holdings Parent's Board (except with respect to clauses (d) and (e) below)in its sole discretion, of the following conditionsconditions set forth below:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the Letter Ruling shall continue in effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction distribution for federal income tax purposes under Sections Section 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Dateby Parent of Company Common Stock to stockholders of Parent will not result in recognition of any income, gain or loss for federal income tax purposes to Parent or Parent's stockholders.
(b) Old Hertz Holdings the Form 10 shall have received become effective under the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.Exchange Act;
(c) Old Hertz Holdings the Company Common Stock to be delivered in the Distribution shall have received a written solvency opinion been approved for listing on Nasdaq, subject to official notice of issuance;
(d) The Parent's Board of Directors shall be satisfied that the Distribution will be made out of surplus within the meaning of Section 170 of the General Corporation Law of the State of Delaware;
(e) Parent's Board of Directors shall have approved the Distribution and shall not have abandoned, deferred or modified the Distribution at any time prior to the Record Date;
(f) the separation of assets and liabilities referred to in Section 2.1 of this Agreement shall have been effected;
(g) the Company's certificate of incorporation (the "Restated Company Charter") and bylaws, in substantially the same forms attached as Exhibits A and B, respectively, hereto shall be in effect;
(h) each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(i) any material Governmental Approvals and Consents necessary to consummate the Distribution shall have been obtained and be in full force and effect;
(j) the credit facilities pertaining to the Company shall have been restructured or assigned to the satisfaction of the Parent, and Parent shall have been released from a financial advisor acceptable all guaranties and other obligations relating to Old Hertz Holdingsthe Company Business and the Company's credit facilities, which confirms medium term notes, commercial paper programs and other indebtedness except Parent shall continue its guarantee as reflected on the solvency and financial viability Reimbursement Agreement;
(k) no order, injunction or decree issued by any court or agency of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose other event outside the control of Parent shall be pending before have occurred or threatened by the SEC.
(e) All statutory requirements for failed to occur that prevents the consummation of the Distributions Distribution; and
(l) no other events or developments shall have been satisfiedoccurred that, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion judgment of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listingParent's Board, subject to official notice of issuance.
(h) Any material Consents necessary for would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings Parent or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.on
Appears in 1 contract
Sources: Separation and Distribution Agreement (Anc Rental Corp)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties FNF to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) FNF, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings final approval of the Distribution shall have been given by the Board of Directors of FNF, and the Board of Directors of FNF shall have declared the dividend of JAX Common Stock, each such action in its sole and absolute discretion;
(b) the Registration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no stop-order in effect with respect thereto and the Information Statement or a notice of the internet availability thereof shall have been mailed to FNF stockholders;
(c) the actions and filings necessary or appropriate under applicable federal and state securities Laws of the United States (and any comparable Laws under any foreign jurisdictions) in connection with the Distribution (including, if applicable, any actions and filings relating to the Registration Statement) and any other necessary and applicable Consents from any Governmental Authority shall have been taken, obtained and, where applicable, have become effective or been accepted, each as the case may be;
(d) the JAX Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Pre-Distribution Transactions or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(f) FNF shall have received a tax opinion from the Internal Revenue Service KPMG LLP, in form and substance satisfactory to FNF, to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) that the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions under Sections [368(a)(1)(D) and] 355 of the Code;
(collectively g) FNF shall have established the Record Date and shall have given the NYSE not less than ten (10) days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Distribution, Exchange Act;
(h) the “Distributions”Distribution will not violate or result in a breach of Law or any material agreement;
(i) and certain related transactions all material Consents required in connection with the Distributions will be tax-free transactions contemplated hereby (that are not referred to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b3.3(c), (d), (h), (i), (j) and (k) shall have been completedreceived and be in full force and effect;
(j) each of the Pre-Distribution Transactions shall have been consummated in accordance with this Agreement;
(k) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with before the Effective Time; and
(l) the Board of Directors of FNF shall have not determined (in its sole and absolute discretion) that any event or development shall have occurred or exists, or might occur or exist, that makes it inadvisable to effect the Distribution. The Each of the foregoing conditions may only be waived by is for the Old Hertz Holdings Boardsole benefit of FNF and FNF may, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board prior to FNF, in its sole and absolute discretion, before the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusiveconclusive and binding on the Parties. Each Party will use good faith efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 1 contract
Sources: Separation and Distribution Agreement (J. Alexander's Holdings, Inc.)
Conditions to Distribution. Pursuant Subject to Section 3.54.4, the Old Hertz Holdings following are conditions to the consummation of the Distribution. The conditions are for the sole benefit of Entergy. The fulfillment of the conditions does not create any obligation on Entergy’s part to effect the Distribution, and the Board of Directors of Entergy has reserved the right, in its sole discretion, to waive any or all of the conditions, and absolute discretion to at any time and from time amend, modify, or abandon the transaction prior to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:Date.
(a) The Form 10 shall have been declared effective by the Commission, with no stop order in effect with respect thereto, and the Information Statement shall have been mailed to the holders of Entergy Common Stock as of the Record Date;
(b) With respect to the Distribution, the Enexus Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of distribution;
(c) Prior to the Distribution, Entergy shall have obtained a private letter ruling that Old Hertz Holdings received from the Internal Revenue Service in form and substance satisfactory to Entergy (in its sole discretion), and such ruling shall remain in effect as of the Distribution Date, to the effect thateffect, subject to among other things, that the accuracy of and compliance Distribution, together with certain representationsother related transactions, assumptions and covenants, (i) the Distribution will qualify qualifies as a tax-free transaction reorganization for United States Federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code and Code;
(iid) the internal spin-off transactions (collectively with Prior to the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings Entergy shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency obtained an opinion from a financial advisor acceptable to Old Hertz Holdings▇▇▇▇▇▇ Godward Kronish LLP, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is its tax counsel, in form and substance acceptable satisfactory to Old Hertz Holdings.Entergy (in its sole discretion), substantially to the effect that the Distribution, together with certain other related transactions, will qualify as reorganization for United States Federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code;
(de) The SEC Any material Governmental Approvals and other Consents necessary to consummate the Distribution or any portion thereof (including the reorganization described in Section 3.1 and the debt financing transactions preceding the Distribution as described in Section 3.5) shall have declared been obtained and be in full force and effect, including the Form 10 effective under regulatory approvals listed or described on Schedule 4.5(e);
(f) No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the Exchange Act, no stop order suspending the effectiveness consummation of all or any portion of the Form 10 Distribution, including the reorganization described in Section 3.1 and the debt financing transactions preceding the Distribution as described in Section 3.5, and all transfers of Assets and Liabilities contemplated in this Agreement or in the Joint Venture Agreements, shall be in effect, and no proceedings for such purpose other event outside the control of Entergy shall be pending before have occurred or threatened by the SEC.
(e) All statutory requirements for failed to occur that prevents the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law all or regulation by any Governmental Authority shall be in effect preventing the completion portion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.Distribution;
(g) The NYSE All permits, registrations, and consents required under the securities or blue sky laws of states or other political subdivisions of the United States or other foreign jurisdictions in connection with the distribution shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.been received;
(h) Any material Consents necessary for the Distribution must The reorganization listed or described in Section 3.1 shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.completed; and
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) Board of Directors of Entergy shall have been completed. The foregoing conditions approved the Distribution, which approval may only be waived by the Old Hertz Holdings Board, in given or withheld at its absolute and sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Enexus Energy CORP)
Conditions to Distribution. Pursuant Exhibit 2.1 Subject to Section 3.54.3, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, Distribution. These conditions are for example, it determines that the Separation is sole benefit of CSC and shall not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties give rise to consummate the Distribution shall be conditioned or create any duty on the satisfaction, part of CSC or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:waive or not waive any such condition.
(a) The private letter ruling that Old Hertz Holdings received from Board shall have, in its sole discretion, authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Reorganization and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) not withdrawn such authorization and approval, and shall have declared the distribution of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free CSRA Common Stock to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.CSC stockholders;
(b) Old Hertz Holdings Each Ancillary Agreement shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.been executed by each party thereto;
(c) Old Hertz Holdings The Form 10 shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms been declared effective by the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActCommission, no stop order suspending the effectiveness of the Form 10 thereof shall be in effect, effect and no proceedings for such purpose shall be pending before or threatened by the SEC.Commission;
(d) The CSRA Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) All statutory requirements for On or prior to the consummation Distribution Date, CSC shall have received a written opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, its tax counsel, in form and substance satisfactory to CSC (in its sole discretion) (the “Tax Opinion”), which shall remain in full force and effect, that, subject to the accuracy and completeness of the Distributions shall have been satisfiedrepresentations, warranties and no injunctioncovenants set forth in the representation letters from CSC and CSRA accompanying such opinion, court order(i) the Internal Reorganization, Law or regulation by any Governmental Authority shall be in effect preventing taken together with the completion Distribution, should qualify as a reorganization within the meaning of Section 368(a)(1)(D) of the Distributions.Code, (ii) CSC should recognize no gain or loss under Section 361(c) of the Code upon the Distribution and (iii) CSC’s stockholders should recognize no gain or loss under Section 355(a) of the Code upon the receipt of CSRA Stock in the Distribution;
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.completed;
(g) The NYSE No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution shall be in effect, and no other event outside the control of CSC shall have approved occurred or failed to occur that prevents the New Hertz Holdings Common Stock for listing, subject to official notice consummation of issuance.all or any portion of the Distribution;
(h) Any material Consents necessary for No other events or developments shall have occurred prior to the Effective Time that, in the judgment of the Board, would result in the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings CSC or New Hertz Holdings.its stockholders;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), Information Statement shall have been mailed to the holders of CSC Common Stock as of the Record Date;
(j) The actions and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement events set forth in Section 8.3 or alter 3.2(b) and Section 3.2(c) shall have occurred;
(k) Prior to the consequences Effective Time, the Board shall have obtained written opinions from a nationally recognized valuation firm, in form and substance satisfactory to CSC, with respect to the capital adequacy and solvency of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior each of CSC and CSRA after giving pro forma effect to the Distribution concerning and the satisfaction Special Dividend; and
(l) Any material Governmental Approvals and other Consents necessary to consummate the Distribution or waiver any portion thereof shall have been obtained and be in full force and effect, including, for the avoidance of any or all of doubt, the conditions set forth in this Section 3.2 shall be conclusiveGovernmental Approvals and Consents contemplated by Sections 2.8 and 2.9.
Appears in 1 contract
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms The obligation of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties FNF to consummate the Distribution shall be conditioned on is subject to the prior or simultaneous satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) FNF, in its sole and (e) below)absolute discretion, of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings final approval of the Distribution shall have been given by the Board of Directors of FNF, and the Board of Directors of FNF shall have declared the dividend of JAX Common Stock, each such action in its sole and absolute discretion;
(b) the Registration Statement shall have been filed with, and declared effective by, the SEC, and there shall be no stop-order in effect with respect thereto and the Information Statement or a notice of the internet availability thereof shall have been mailed to FNF stockholders;
(c) the actions and filings necessary or appropriate under applicable federal and state securities Laws of the United States (and any comparable Laws under any foreign jurisdictions) in connection with the Distribution (including, if applicable, any actions and filings relating to the Registration Statement) and any other necessary and applicable Consents from any Governmental Authority shall have been taken, obtained and, where applicable, have become effective or been accepted, each as the case may be;
(d) the JAX Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Pre-Distribution Transactions or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall have been threatened or be in effect;
(f) FNF shall have received a tax opinion from the Internal Revenue Service KPMG LLP, in form and substance satisfactory to FNF, to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) that the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”under Sections 368(a)(1)(D) and certain related transactions 355 of the Code;
(g) FNF shall have established the Record Date and shall have given the NYSE not less than ten (10) days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act; (h) the Distribution will not violate or result in a breach of Law or any material agreement;
(i) all material Consents required in connection with the Distributions will be tax-free transactions contemplated hereby (that are not referred to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b3.3(c), (d), (h), (i), (j) and (k) shall have been completedreceived and be in full force and effect;
(j) each of the Pre-Distribution Transactions shall have been consummated in accordance with this Agreement;
(k) the Ancillary Agreements shall have been duly executed and delivered and such agreements shall be in full force and effect and the parties thereto shall have performed or complied with all of their respective covenants, obligations and agreements contained herein and therein and as required to be performed or complied with before the Effective Time; and
(l) the Board of Directors of FNF shall have not determined (in its sole and absolute discretion) that any event or development shall have occurred or exists, or might occur or exist, that makes it inadvisable to effect the Distribution. The Each of the foregoing conditions may only be waived by is for the Old Hertz Holdings Boardsole benefit of FNF and FNF may, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board determine whether to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3condition. Any determination made by the Old Hertz Holdings Board prior to FNF, in its sole and absolute discretion, before the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 3.3 shall be conclusiveconclusive and binding on the Parties. Each Party will use good faith efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the foregoing conditions.
Appears in 1 contract
Sources: Separation and Distribution Agreement (J. Alexander's Holdings, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the The obligations of the parties Parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below)MetLife board of directors, or an applicable committee thereof, of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from MetLife board of directors shall, in its sole and absolute discretion, have authorized and approved the Internal Revenue Service to Corporate Reorganization, any other transfers and assumptions of liabilities contemplated by this Agreement, the effect thatTransaction Documents and any related agreements, subject to the accuracy of Separation and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Datewithdrawn such authorization and approval.
(b) Old Hertz Holdings The MetLife board of directors shall have received declared the opinions dividend of its Tax Advisors that Company Common Stock to the Distributions will qualify Record Holders, such dividend to be paid to the Record Holders as tax-free transactions under Section 355 part of the Code, subject Distribution pursuant to the accuracy of terms and compliance with certain representations, assumptions and covenantsconditions set forth herein.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Registration Statement on Form 10 in respect of the Distribution, of which the Information Statement is a part, effective under the Exchange Act, no stop order suspending the effectiveness of the such Registration Statement on Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(ed) All statutory requirements for the consummation The notice of internet availability of the Distributions Information Statement shall have been satisfied, and no injunction, court order, Law or regulation mailed to MetLife’s stockholders as contemplated by any Governmental Authority shall be in effect preventing the completion of the DistributionsSection 3.2(c).
(fe) The Internal Reorganization applicable national securities exchange approved by the MetLife board of directors, or an applicable committee thereof, for listing of the Company Common Stock shall have been completed and HERC shall have entered into accepted the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Company Common Stock for listing, subject to official notice of issuance.
(f) The Corporate Reorganization shall have been completed.
(g) The private letter ruling that MetLife received from the Internal Revenue Service regarding certain significant issues under the Code relating to the transaction will not have been revoked or modified in any material respect as of the Closing Date.
(h) Any material Consents necessary for MetLife shall have received an opinion from its Tax Advisor, in form and substance satisfactory to MetLife in its sole and absolute discretion, that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, the Distribution must have been obtainedwill qualify for non-recognition of gain or loss to MetLife and MetLife’s stockholders pursuant to Section 355 of the Code, without any conditions except to the extent of cash received in lieu of fractional shares.
(i) No order, injunction or decree that would prevent the consummation of the Distribution shall be threatened, pending or issued (and still in effect) by any Governmental Authority of competent jurisdiction, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of MetLife shall have occurred or failed to occur that prevents the consummation of the Distribution.
(j) No other events or developments shall have occurred prior to the Distribution that, in the judgment of the MetLife board of directors, or an applicable committee thereof, would result in the Distribution having a material adverse effect on HERC Holdings MetLife or New Hertz Holdingsthe MetLife stockholders.
(ik) The actions set forth in Sections 3.1(b3.2(b), (dc), (h), (i), (jg) and (kh) and Section 3.3 shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 1 contract
Sources: Master Separation Agreement
Conditions to Distribution. Pursuant Subject to Section 3.53.2, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedDistribution. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Parent and shall not give rise to or create any duty on the part of Parent or the Old Hertz Holdings Board of Directors of Parent to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination condition:
(a) The Form 10 shall have been filed with the Commission for the purpose of registering the Subsidiary Common Stock under the Exchange Act, with no stop order in effect with respect thereto.
(b) An information statement satisfying the requirements of Commission shall have been filed with the Commission and mailed to all holders of Parent Common Stock and Parent Common Stock Equivalents.
(c) All Government Approvals and other Consents necessary to consummate the Distribution shall have been obtained and be in full force and effect, except for any such Government Approvals or Consents the failure of which to obtain would not have material adverse effect on the business, operations or condition (financial or otherwise) of either Parent or Subsidiary.
(d) No order, injunction or decree issued by any court or agency of competent jurisdiction preventing the consummation of the Distribution shall be in effect and no other event outside the control of Parent shall have occurred or failed to occur that prevents the consummation of the Distribution.
(e) The Board of Directors of Parent shall have authorized and approved the Distribution and not withdrawn such authorization and approval.
(f) The Board of Directors of Parent shall not have reasonably determined in good faith that the Distribution would not be permitted under the Delaware General Corporation Law, as amended.
(g) Parent and Subsidiary shall have secured waivers and releases of all claims from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board current Subsidiary employees with respect the Settled Liabilities.
(h) Parent and Subsidiary shall have entered into an exchange agreement with Sovereign Partners, LP, pursuant to which, effective prior to the Record Date, Sovereign Partners will exchange all shares of Subsidiary Preferred Stock which it currently owns, for shares of Parent Common Stock.
(i) Parent shall have filed an amendment to its Certificate of Incorporation with the Secretary of State of Delaware, pursuant to which Parent will be duly authorized to distribute a sufficient number of shares of Subsidiary Common Stock necessary to effect the Distribution concerning pursuant to section 3.2 herein, and pursuant to which the satisfaction or waiver of any or all name of the conditions set forth Subsidiary will be changed to “SpeechFX, Inc.”
(j) No other events or developments shall have occurred that, in this Section 3.2 shall be conclusivethe sole discretion of the Board of Directors of Parent, would result in the Distribution having a material adverse effect on Parent, its stockholders or its creditors, or not being in the best interest of Parent, its stockholders and creditors.
Appears in 1 contract
Sources: Separation and Distribution Agreement (SpeechFX Inc)
Conditions to Distribution. Pursuant The obligation of JS Global to Section 3.5effect the Distribution pursuant to this Agreement shall be subject to the prior or simultaneous satisfaction, or, to the Old Hertz Holdings Board has extent permitted by applicable Law, waiver by JS Global, in its sole and absolute discretion to at any time discretion, after consulting in good faith with ▇▇▇▇▇▇▇▇▇▇ and from time to time until after reasonably considering the Distribution decide to abandon the Distribution or modify or change the terms views of the Distribution if, for example, it determines that the Separation is not SharkNinja (which SharkNinja shall promptly provide in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties to consummate the Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) belowgood faith), of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively Reorganization shall have been completed substantially in accordance with the Separation Plan (other than any of such steps that are expressly contemplated to occur at or after the Distribution, the “Distributions”);
(b) and certain related transactions all Distribution Disclosure Documents filed in connection with the Distributions will Distribution shall be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange Securities Act, no stop order suspending relating to the effectiveness of the Form 10 shall Distribution Disclosure Documents will be in effect, and no proceedings for seeking such purpose stop order shall be pending before or threatened by the SEC.
(e) All statutory requirements for Commission, and the consummation of the Distributions requisite information shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing distributed to the completion of the Distributions.JS Global Shareholders;
(fc) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE Stock Exchange shall have approved the New Hertz Holdings Common Stock for listingExchange Listing Application, subject to official notice of issuance.;
(d) this agreement and each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(e) the actions and filings with regard to state securities and “blue sky” Laws of states or other political subdivisions of the United States (and any comparable Laws under any foreign jurisdictions) described in Section 3.1(b) shall have been taken and, where applicable, have become effective or been accepted;
(f) no order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution shall be pending, issued or in effect, and no other event outside the control of the Parties shall have occurred or failed to occur that prevents the consummation of all or any portion of the Distribution or any related transactions contemplated hereby, including the Internal Reorganization;
(g) the JS Global Board shall have approved the Distribution and shall have not determined, in the sole and absolute judgment of the JS Global Board, that any events or developments shall have occurred that make it inadvisable to effect the Internal Reorganization, Distribution and other transactions contemplated by this Agreement or the Ancillary Agreements or would result in the Internal Reorganization, Distribution and other transactions contemplated by this Agreement or the Ancillary Agreements not being in the best interest of JS Global or the JS Global Shareholders; and
(h) Any material Consents necessary for the Distribution must JS Global Shareholder Approval shall have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusive.
Appears in 1 contract
Sources: Separation and Distribution Agreement (SharkNinja, Inc.)
Conditions to Distribution. Pursuant to Section 3.5, The CFI Board shall in its discretion establish the Old Hertz Holdings Board has sole Record Date and absolute discretion to at any time and from time to time until the Distribution decide to abandon Date and all appropriate procedures in connection with the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings StockholdersDistribution. In addition, the obligations of the parties to consummate the The Distribution shall be conditioned on the satisfaction, or waiver by the Old Hertz Holdings Board (except with respect subject to clauses (d) and (e) below), satisfaction of each of the following conditions:
, among other things: (ai) The private letter ruling that Old Hertz Holdings received the consummation of certain internal corporate reorganizations; (ii) the successful renegotiation of certain CFI credit facilities and debt instruments, including the execution of certain consents, waivers and amendments thereto by lenders, and the maintenance of CFI's investment grade debt ratings; (iii) the establishment of a separate credit facility for CFCD; (iv) the receipt of certain third-party consents relating to certain contracts, licenses and other agreements; (v) the receipt of rulings from the Internal Revenue Service IRS or an opinion of special tax counsel to CFI to the effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will generally qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions distribution under Section 355 of the CodeInternal Revenue Code of 1986, subject as amended; (vi) the receipt of a letter from the staff of the Commission confirming that it will take no action with respect to certain matters relating to the accuracy of and compliance with certain representations, assumptions and covenants.
Distribution; (cvii) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 having become effective under the Exchange Act, and no stop order suspending being in effect; (viii) there not being in effect any statute, rule, regulation or order of any court, governmental or regulatory body that prohibits or makes illegal the effectiveness transactions contemplated by the Distribution; (ix) approval for listing of the Form 10 shall be in effect, Company Common Stock on the Nasdaq National Market; and no proceedings for such purpose shall be pending before or threatened (x) declaration of the special dividend by the SEC.
(e) All statutory requirements for CFI Board. The CFI Board reserves the consummation of the Distributions shall have been satisfiedright in its discretion, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject other than with respect to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.
(i) The actions those set forth in Sections 3.1(b), (d), (h), clauses (i), (jv), (vi), (vii) and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Boardx), in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences satisfaction of any such termination from those specified in Section 8.3. Any determination made by condition to the Old Hertz Holdings Distribution; provided, however, that the CFI Board may abandon, defer or modify the Distribution and the related transactions at any time prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusiveDate.
Appears in 1 contract
Sources: Distribution Agreement (Consolidated Freightways Inc)
Conditions to Distribution. Pursuant Subject to Section 3.54.3, the Old Hertz Holdings Board has sole and absolute discretion following are conditions to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms consummation of the Distribution if, Distribution. These conditions are for example, it determines that the Separation is sole benefit of Delta and shall not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the obligations of the parties give rise to consummate the Distribution shall be conditioned or create any duty on the satisfaction, part of Delta or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), of the following conditions:waive or not waive any such condition.
(a) The private letter ruling that Old Hertz Holdings received from Board shall have authorized and approved the Internal Revenue Service to the effect that, subject to the accuracy of Reorganization and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify as a tax-free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, and shall have declared the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free distribution of Ultra Common Stock to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.Delta stockholders;
(b) Old Hertz Holdings Each Ancillary Agreement shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.been executed by each party thereto;
(c) Old Hertz Holdings The Form 10 shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdings, which confirms been declared effective by the solvency and financial viability of Old Hertz Holdings before the consummation of the Distribution and each of HERC Holdings and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.
(d) The SEC shall have declared the Form 10 effective under the Exchange ActCommission, no stop order suspending the effectiveness of the Form 10 thereof shall be in effect, effect and no proceedings for such purpose shall be pending before or threatened by the SEC.Commission;
(d) The Ultra Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(e) All statutory requirements for On or prior to the consummation Distribution Date, Delta shall have received a written opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, its tax counsel, in form and substance satisfactory to Delta (in its sole discretion) (the “Tax Opinion”), which shall remain in full force and effect, that, subject to the accuracy and completeness of the Distributions shall have been satisfiedrepresentations, warranties and no injunctioncovenants set forth in the representation letters from Delta and Ultra accompanying such opinion, court order(i) the Internal Reorganization, Law or regulation by any Governmental Authority shall be in effect preventing taken together with the completion Distribution, should qualify as a reorganization within the meaning of Section 368(a)(1)(D) of the Distributions.Code, (ii) Delta should recognize no gain or loss under Section 361(c) of the Code upon the Distribution and (iii) Delta’s stockholders should recognize no gain or loss under Section 355(a) of the Code upon the receipt of Ultra Stock in the Distribution;
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.completed;
(g) The NYSE Special Dividend shall have approved been declared and paid to Delta and the New Hertz Holdings Common Stock for listing, subject to official notice of issuanceDebt Exchange shall have been effected on the terms set forth in the Merger Agreement.
(h) Any material Consents necessary for No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the Distribution must have been obtained, without any conditions that would have a material adverse effect on HERC Holdings or New Hertz Holdings.shall be in effect;
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), Information Statement shall have been mailed to the holders of Delta Common Stock as of the Record Date;
(j) The actions and (k) shall have been completed. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement events set forth in Section 8.3 or alter 3.2(a) and Section 3.2(b) shall have occurred; and
(k) Prior to the consequences Effective Time, the Board shall have obtained written opinions from a nationally recognized valuation firm, in form and substance reasonably satisfactory to Delta, with respect to the capital adequacy and solvency of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior each of Delta and Ultra after giving pro forma effect to the Distribution concerning and the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusiveSpecial Dividend (each such opinion, a “Solvency Opinion”).
Appears in 1 contract
Sources: Separation and Distribution Agreement (Perspecta Inc.)
Conditions to Distribution. Pursuant to Section 3.5, the Old Hertz Holdings Board has sole and absolute discretion to at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution if, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders. In addition, the 1.2.1 The obligations of the parties each party hereto to consummate the Distribution shall be conditioned on are subject to the satisfaction, satisfaction or waiver by the Old Hertz Holdings Board (except with respect to clauses (d) and (e) below), Yellow in its sole discretion of each of the following conditions:
(a) The private letter ruling that Old Hertz Holdings received from the Internal Revenue Service to the effect that, subject to the accuracy of and compliance with certain representations, assumptions and covenants, (i) the Distribution will qualify simultaneous execution, delivery, and performance as a tax-free transaction under Sections 355 and 368(a)(1)(D) required of each of the Code following:
(a) this Agreement;
(b) the Tax Sharing Agreement;
(c) the execution by both Yellow and SCST of those certain Debt Agreements listed in paragraph 1.2.1 of the disclosure letter from Yellow to SCST dated the date hereof (the "Disclosure Letter") on or before the Distribution Date, in form, substance and amount satisfactory to Yellow, reflecting the payment by SCST to Yellow on or before the Distribution Date of a cash dividend or repayment of intercompany indebtedness or a combination of the foregoing (together, the "Yellow Payment") in the approximate amount of $115 million;
(ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, Registration Statement shall not have been revoked filed and declared effective by the Commission, and there shall be no stop order in effect with respect thereto, and no proceeding for that purpose shall have been instituted or modified in any material respect as threatened by the Commission;
(iii) the actions and filings with regard to state securities and blue sky laws of the Distribution Date.United States (and any comparable laws under any foreign jurisdictions) shall have been taken and, where applicable, have become effective or been accepted;
(biv) Old Hertz Holdings the SCST Common Stock to be distributed in the Distribution shall have received the opinions been admitted for trading on The Nasdaq National Market, on official notice of its Tax Advisors that the Distributions will qualify as tax-free transactions under Section 355 of the Code, subject to the accuracy of and compliance with certain representations, assumptions and covenants.distribution;
(cv) Old Hertz Holdings shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdingsno order, which confirms the solvency and financial viability of Old Hertz Holdings before injunction or decree issued by any Government Authority or other legal restraint or prohibition preventing the consummation of the Distribution or any of the other transactions contemplated by this Agreement or the Tax Sharing Agreement shall be threatened, pending or in effect;
(vi) the Letter Ruling shall have been issued and each shall not have been revoked;
(vii) any material Consents and Governmental Approvals necessary to consummate the Distribution shall have been obtained and be in full force and effect;
(viii) Yellow's Board of HERC Holdings Directors shall be satisfied that the Distribution will be made out of surplus within the meaning of Section 170 of the Delaware General Corporation Law;
(ix) Yellow's Board of Directors shall have approved the Separation and New Hertz Holdings after the consummation of the Distribution and is in form and substance acceptable shall not have abandoned or deferred the Distribution at any time prior to Old Hertz Holdings.the Record Date;
(dx) The SEC Yellow's Board of Directors shall have declared be satisfied that the Form 10 effective under Distribution does not constitute the Exchange Act, no stop order suspending the effectiveness conveyance of all or substantially all of the Form 10 properties or assets of Yellow immediately prior to the Distribution, as contemplated in Section 271 of the Delaware General Corporation Law;
(xi) the Certificate of Incorporation and By-laws shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.;
(exii) All statutory requirements for the consummation of the Distributions no other events or developments shall have been satisfiedoccurred that, and no injunctionin the sole judgment of Yellow, court order, Law or regulation by any Governmental Authority shall be would result in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings Yellow or New Hertz Holdings.its stockholders;
(ixiii) The actions set forth in Sections 3.1(b), Yellow's Board of Directors shall be satisfied that each of Yellow and SCST will be solvent following the Distribution; and
(d), (h), (i), (jxiv) and (k) SCST shall have been completed. The foregoing conditions may only be waived by made the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings and shall not give rise to or create any duty on the part of the Old Hertz Holdings Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusiveYellow Payment.
Appears in 1 contract
Sources: Master Separation and Distribution Agreement (SCS Transportation Inc)
Conditions to Distribution. Pursuant The Odetics Board currently intends -------------------------- to Section 3.5effect the Distribution by December 31, 1997. Subject to any restrictions contained in the Underwriting Agreement, the Old Hertz Holdings Odetics Board has shall have the sole and absolute discretion to determine the date of consummation of the Distribution at any time after the Closing Date and from time on or prior to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution ifDecember 31, for example, it determines that the Separation is not in the best interests of Old Hertz Holdings and the Old Hertz Holdings Stockholders1997. In addition, the obligations of the parties Odetics shall be obligated to consummate the Distribution shall be conditioned on no later than December 31, 1997, subject to the satisfaction, or waiver by the Old Hertz Holdings Odetics Board (except with respect to clauses (d) and (e) below)in its sole discretion, of the conditions set forth below. In the event that any such condition shall not have been satisfied or waived on or before December 31, 1997, Odetics shall consummate the Distribution as promptly as practicable following the satisfaction or waiver of all such conditions:.
(a) The a. a private letter ruling that Old Hertz Holdings received from the Internal Revenue Service shall have been obtained, and shall continue in effect, to the effect that, subject to the accuracy of and compliance with certain representationsamong other things, assumptions and covenants, (i) the Distribution will qualify as a tax-tax free transaction under Sections 355 and 368(a)(1)(D) of the Code and (ii) the internal spin-off transactions (collectively with the Distribution, the “Distributions”) and certain related transactions in connection with the Distributions will be tax-free to the parties to those spin-offs and related transactions, shall not have been revoked or modified in any material respect as of the Distribution Date.
(b) Old Hertz Holdings shall have received the opinions of its Tax Advisors that the Distributions will qualify as tax-free transactions distribution for federal income tax purposes under Section 355 of the CodeCode and will not result in the recognition of any gain to Odetics or Odetics' stockholders, subject and such ruling shall be in form and substance satisfactory to Odetics in its sole discretion;
b. any material governmental approvals and consents necessary to consummate the accuracy of and compliance with certain representations, assumptions and covenants.
(c) Old Hertz Holdings Distribution shall have received a written solvency opinion from a financial advisor acceptable to Old Hertz Holdingsbeen obtained and be in full force and effect;
c. no order, which confirms the solvency and financial viability injunction or decree issued by any court or agency of Old Hertz Holdings before competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect and each no other event outside the control of HERC Holdings and New Hertz Holdings after Odetics shall have occurred or failed to occur that prevents the consummation of the Distribution and is in form and substance acceptable to Old Hertz Holdings.Distribution; and
(d) The SEC d. no other events or developments shall have declared occurred subsequent to the Form 10 effective under date hereof that, in the Exchange Act, no stop order suspending the effectiveness judgment of the Form 10 shall be Board of Directors of Odetics, would result in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC.
(e) All statutory requirements for the consummation of the Distributions shall have been satisfied, and no injunction, court order, Law or regulation by any Governmental Authority shall be in effect preventing the completion of the Distributions.
(f) The Internal Reorganization shall have been completed and HERC shall have entered into the HERC Credit Facility and HERC Financing Arrangements and completed the HERC Cash Transfers.
(g) The NYSE shall have approved the New Hertz Holdings Common Stock for listing, subject to official notice of issuance.
(h) Any material Consents necessary for the Distribution must have been obtained, without any conditions that would have having a material adverse effect on HERC Holdings Odetics or New Hertz Holdings.
(i) The actions set forth in Sections 3.1(b), (d), (h), (i), (j) and (k) shall have been completedon the stockholders of Odetics. The foregoing conditions may only be waived by the Old Hertz Holdings Board, in its sole and absolute discretion, are for the sole benefit of Old Hertz Holdings Odetics and shall not give rise to or create any duty on the part of Odetics or the Old Hertz Holdings Odetics Board of Directors to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 8.3 or alter the consequences of any such termination from those specified in Section 8.3. Any determination made by the Old Hertz Holdings Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.2 shall be conclusivecondition.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Odetics Inc)