Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date and Parent shall have received a certificate dated as of the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any change, development or effect which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (d) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of the Executed Written Consent effecting the Required Company Stockholder Vote; and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (e) (i) no Action shall be pending or threatened in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (A) prevent consummation of the Merger, (B) affect adversely the right of Parent or its Affiliates to control the Company or (C) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no such Order shall be in effect. (f) The Company shall have obtained the consents and waivers set forth on Schedule 7.2(f) (the “Required Consents”). (g) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3) (the “FIRPTA Certificate”). (h) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇ (Ed) ▇. ▇▇▇▇▇▇▇, D.O., in office immediately prior to the Effective Time. (i) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”). (j) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated no more than five (5) Business Days prior to the Closing Date. (k) Parent and Merger Sub shall have received an opinion from counsel for the Company in substantially the form attached hereto as Exhibit E. (l) The Company shall have received the Required Company Stockholder Vote. (m) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof. (n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof. (o) The Company shall not have any outstanding Liens (other than Permitted Liens). (p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (q) All approvals, waivers and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity. (r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect. (s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereof. (t) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”). (u) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) shall be employed by the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing. (v) shall have each entered into a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent. (w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC. (x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject at the option of Parent and Merger Sub to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions:
(a) The representations and warranties of the Company set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(b) The Company shall have performed in all material respects all obligations its agreements contained in this Agreement required to be performed by it under this Agreement at on or prior to the Effective Time and the representations and warranties of the Company and the Company Shareholders set forth in Article IV and IV-A hereof shall be true, correct and complete as of the Effective Time as if made as of such time other than representations or warranties that speak as of a particular date, which shall continue to be true, correct and complete as of such date, and except as contemplated or permitted by this Agreement; and at the Closing Date Parent and Parent Merger Sub shall have received a certificate dated as of the Closing Date signed on behalf of the Company executed by the Chief Executive Officer President of the Company to such effect.the foregoing effects with respect to the agreements, representations and warranties of the Company;
(cb) Since the date of this Agreement there no action, suit, claim, investigation or proceeding shall not have occurred a Material Adverse Effect on be pending or threatened against the Company or any change, development or effect its properties and assets which, individually or in the aggregateif adversely determined, would could reasonably be expected to have a Material Adverse Effect on the business, assets, condition (financial or otherwise) or results of operations of the Company;
(c) At the Closing, there shall be delivered to Parent and Merger Sub the opinion of Fole▇, ▇▇ag & ▇lio▇ ▇▇▇, counsel for the Company and the Company Shareholders, dated the Closing Date, in form and substance satisfactory to Parent and Merger Sub and their counsel and substantially as set forth in Exhibit E;
(d) Parent shall have received a certificate dated letter from Pricewaterhouse Coopers LLP, auditors for Parent, in a form reasonably satisfactory to Parent, regarding its concurrence with the Closing Date signed on behalf conclusion of Parent that both parties to the merger are poolable entities and that Parent may treat the Merger as a "pooling of interests" for accounting purposes under Accounting Principles Board Opinion No. 16 and the applicable rules and regulations of the Company by the Chief Executive Officer of the Company to such effectCommission.
(de) The the Company shall have taken received all corporate action necessary Required Consents and all consents, authorizations or approvals from the governmental agencies, as well as all consents and waivers required under the Company's Certificate of Incorporation in each case in form and substance satisfactory to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub and their counsel, and no such consent, authorization or approval shall have been withdrawn;
(f) all corporate and other proceedings to be taken by the Company in connection with a the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Parent and Merger Sub and their counsel, and Parent and Merger Sub and their counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request;
(g) At or prior to the Closing, Parent shall have received copies of the following documents:
(i) to the due incorporation and good standing of the Company, and listing all documents of the Company on file with said Secretary.
(ii) A certificate of the Secretary of the Company, Company dated the Closing Date, certifying thatDate and certifying: (iA) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) that attached thereto is a true and complete copy of the Executed Written Consent effecting By-laws of the Required Company Stockholder Voteas in effect on the date of such certification; and (iiiB) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors or the shareholders of the Company authorizing the execution, delivery and performance of this Agreement, and that all such resolutions have not been amended and are in full force and effect as and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (C) that the Certificate of Incorporation of the Closing DateCompany has not been amended since the date of the last amendment referred to in the certificate delivered pursuant to clause (i)(B) above; and (D) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, and any certificate or instrument furnished pursuant hereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii).
(eiii) Such additional supporting documents and other information with respect to the operations and affairs of the Company as Parent and Merger Sub or their counsel reasonably may request.
(ih) no Action Parent shall be pending or threatened satisfied, in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (A) prevent consummation its sole discretion after consultation with its counsel, that the approval of the Merger, (B) affect adversely this Agreement and all associated transactions by the right Company Shareholders and the issuance of Parent or its Affiliates to control Common Stock hereunder shall have been conducted in compliance with the Company or (C) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no such Order shall be in effect.Securities Act;
(fi) The Company shall have obtained the consents and waivers set forth on Schedule 7.2(f) (the “Required Consents”).
(g) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3) (the “FIRPTA Certificate”).
(h) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇ (Ed) ▇. ▇▇▇▇▇▇▇, D.O., in office immediately prior to the Effective Time.
(i) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses true and Company Effective Time Indebtedness) complete copy of the Company as of Annual Unaudited Financial Statements and the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”)Unaudited Interim Financial Statements.
(j) The Company shall have delivered to Parent certificates a properly executed statement satisfying the requirements of good standing for the Company from the Secretary of State of the State of Delaware Treasury Regulation Sections 1.897-2(h) and California, each dated no more than five (51.1445-2(c)(3) Business Days prior in a form reasonably acceptable to the Closing Date.Parent;
(k) Parent and Merger Sub No change in the business, assets, condition (financial or otherwise) or results of operations of the Company shall have received an opinion from counsel for occurred since the Company date of this Agreement which individually or in substantially the form attached hereto as Exhibit E.aggregate has resulted in, or will cause a Material Adverse Effect.
(l) The Holders of Outstanding Company Shares representing at least ninety-five percent (95%) of the voting power of Company Shares entitled to approve the Merger and the form of this Agreement shall have received executed and delivered the Required Company Stockholder VoteCompany's Shareholders' Consent in favor of the transactions contemplated herein.
(m) The Each founder, Stef▇▇▇▇ ▇▇▇▇▇, ▇▇ch officer and key employee, and marketing technology employee of the Company shall have terminated executed an Employee Non-Disclosure, Invention and Covenant Not to Compete Agreement in substantially the Company Stock Option Plan form of Exhibits F-1, F-2, F-3 and shall have provided Parent with satisfactory evidence thereofF-4, respectively.
(n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised No employee or terminated and other option holder of the Company shall have provided Parent with satisfactory evidence thereof.
(o) The Company shall not have exercised any outstanding Liens (other than Permitted Liens).
(p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable option to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate purchase shares of the Company dated Company's capital stock after the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(q) All approvals, waivers date hereof and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity.
(r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect.
(s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(t) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”).
(u) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) shall be employed by the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing.
(v) shall have each entered into a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent.
(w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC.
(x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Silknet Software Inc)
Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions:
(a) The representations and warranties of the Company set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date and Date. Parent shall have received a certificate dated as of the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any change, development or effect which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(d) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the Executed Written Consent effecting Stockholders adopting and approving this Agreement and the Required Company Stockholder VoteMerger (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.
(ed) (i) no No Action shall be pending or threatened in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (Ai) prevent consummation of the Merger, (Bii) affect adversely the right of Parent or its Affiliates to control the Company or (Ciii) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no . No such Order shall be in effect.
(e) The Company shall have terminated its 401(k) plan on the day immediately prior to Closing.
(f) The holders of no more than five percent (5%) percent of the Company Capital Stock shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights.
(g) The Company shall have obtained the consents and waivers set forth on Schedule 7.2(f) (the “Required Consents”7.2(g).
(gh) The Company shall have delivered to Parent evidence in form and substance satisfactory to Parent that the Contracts listed on Schedule 7.2(h) have been terminated.
(i) No later than two (2) days prior to the Closing Date, the Company shall have delivered to Parent a statement setting forth the Estimated Adjusted Closing Cash and Estimated Closing Liabilities and shall provide all such support for the calculation of Estimated Adjusted Closing Cash as Parent shall reasonably request.
(j) The Indemnity Escrow Agent, the Company and the Stockholders’ Representative shall have duly executed and delivered the Indemnity Escrow Agreement to Parent.
(k) Parent and Merger Sub shall have received a written opinion from DLA Piper, counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in the form attached as Exhibit D hereto.
(l) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-1.1445 2(c)(3) (the “FIRPTA Certificate”).
(hm) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇ (Ed) ▇. ▇▇▇▇▇▇▇, D.O., Company in office immediately prior to the Effective Time.
(in) No more than two The individuals set forth in Schedule C hereto shall have executed consulting agreements with the Parent as of the date of this Agreement.
(2o) Business Days prior to the Closing Date, the The Company shall have furnished Parent filed its 2012 Federal and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”)California income Tax Returns.
(jp) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated no more than five (5) Business Days prior to the Closing Date.
(k) Parent and Merger Sub shall have received an opinion from counsel for the Company in substantially the form attached hereto as Exhibit E.
(lq) The Company shall have received prepared and delivered a notice, in a form acceptable to Parent, to each Stockholder who is entitled to appraisal rights under Section 262 of the Required Company Stockholder VoteDGCL or dissenters’ rights under Chapter 13 of the California Corporations Code.
(mr) The Company shall have filed the Certificate of Amendment with the Secretary of State of the State of Delaware and furnished to Parent a copy of such Certificate of Amendment as certified by such Secretary of State.
(s) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof.
(n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(o) The Company shall not have any outstanding Liens (other than Permitted Liens).
(p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(q) All approvals, waivers and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity.
(r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect.
(s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereofPlan.
(t) The Company’s employees set forth on Schedule 7.2(t) (All outstanding warrants to purchase the “Terminated Employees”) Company Capital Stock shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”)terminated.
(u) The Company’s employees set forth on Schedule 7.2(u) (Company shall have obtained the “Continuing Employees”) shall be employed by the Required Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the ClosingStockholder Vote.
(v) Each of the Stockholders listed on Schedule 5.5 shall have each entered into executed and delivered a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to ParentCompany Stockholder Agreement.
(w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC.
(x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G Each of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (iiStockholders listed on Schedule 7.2(w) shall have voted upon executed and disapproved such parachute payments, and, delivered a Stockholder Representation Statement in the form attached hereto as a consequence, such “parachute payments” shall not be made or provided for in any manner.Exhibit E.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent Parent, PHH and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment or waiver (to the extent permitted by Parent in its sole discretionapplicable law) at or prior to the Effective Time of the following further conditions:
(a) The representations and warranties of the Company set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and respects as of the Effective Time as though made on or as of such time (ignoring for purposes of this determination any materiality or Material Adverse Effect qualifiers contained within individual representations and warranties), except for (i) those representations and warranties that address matters only as of a particular date hereof and shall or only with respect to a specific period of time which need only be true and correct in all material respects at and as of the Closing Date as if made at such date or with respect to such period and as of the Closing Date, except (ii) such failures to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been be true and correct as would not, individually or in all material respects as of such earlier datethe aggregate, and Parent shall have received reasonably be expected to result in a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effectMaterial Adverse Effect.
(b) The Company shall have performed and complied in all material respects with all obligations obligations, agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date and Parent shall have received a certificate dated Effective Time, except for such failures to perform or comply as of the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any change, development or effect whichwould not, individually or in the aggregate, would reasonably be expected to have result in a Material Adverse Effect on the Company, and Effect.
(c) Parent shall have received a certificate signed by the chief financial officer of the Company, dated as of the Closing Date signed on behalf Date, to the effect that, to the best of such officer’s knowledge, the Company by the Chief Executive Officer of the Company to such effectconditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied.
(d) The Company shall have taken all corporate action necessary to approve Neither the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of Board nor the Secretary of the Company, dated the Closing Date, certifying that: Independent Committee (i) attached thereto is a true and complete copy shall have withdrawn, modified or changed its approval or recommendation of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and Agreement, the Merger (such resolutions or the other Transactions in any manner which Parent reasonably determines to be in form and substance reasonably satisfactory adverse to Parent); , (ii) attached thereto is shall have recommended the approval or acceptance of a true and complete copy Superior Proposal or Third-Party Acquisition from a Person or entity other than a member of the Executed Written Consent effecting the Required Company Stockholder Vote; and Acquisition Group, or (iii) that such resolutions shall have not been amended and are in full force and effect as of the Closing Dateexecuted any Company Acquisition Agreement.
(e) (i) no Action No event, change, development or circumstance shall be pending have occurred or threatened shall exist which is reasonably expected to result in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (A) prevent consummation of the Merger, (B) affect adversely the right of Parent or its Affiliates to control the Company or (C) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no such Order shall be in effectMaterial Adverse Effect.
(f) The Company shall have obtained the consents consents, approvals and waivers set forth on Schedule 7.2(f) (the “Required Consents”).
(g) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation in Section 1.1445-2(c)(3) (the “FIRPTA Certificate”).
(h) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇ (Ed) ▇. ▇▇▇▇▇▇▇, D.O., in office immediately prior to the Effective Time.
(i) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness6.3(f) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”)Disclosure Schedule.
(j) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated no more than five (5) Business Days prior to the Closing Date.
(k) Parent and Merger Sub shall have received an opinion from counsel for the Company in substantially the form attached hereto as Exhibit E.
(l) The Company shall have received the Required Company Stockholder Vote.
(m) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof.
(n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(o) The Company shall not have any outstanding Liens (other than Permitted Liens).
(p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(q) All approvals, waivers and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity.
(r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect.
(s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(t) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”).
(u) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) shall be employed by the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing.
(v) shall have each entered into a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent.
(w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC.
(x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.
Appears in 1 contract
Sources: Merger Agreement (PHH Corp)
Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the additional following further conditions:
(a) The the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date;
(b) the representations and warranties of the Company set forth contained in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof and shall be true and correct in all material respects at (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the date made and on and as of the Closing Date as if made at and as of such date;
(c) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in or constitute, a Material Adverse Effect;
(d) all governmental waivers, consents, orders, permit transfers (including without limitation Environmental Permits) and approvals legally required for the consummation of the Merger and the transactions contemplated hereby or to permit Parent to carry on the business of the Company after Closing in accordance with past customs and practice shall have been obtained and be in effect at the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties no governmental authority shall have been true and correct in promulgated any statute, rule or regulation which, when taken together with all material respects as of such earlier datepromulgations, and Parent shall have received a certificate dated would materially impair the Closing Date signed on behalf of the Company by the Chief Executive Officer value of the Company to such effect.
(b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date and Parent shall have received a certificate dated as of the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any change, development or effect which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(d) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of the Executed Written Consent effecting the Required Company Stockholder Vote; and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.;
(e) (i) no Action shall be pending or threatened in writing before all waivers, consents and approvals from third parties necessary for the transfer of any court or other Governmental Entity or before material contracts, financial assurances and any other Person wherein an unfavorable Order would (A) prevent consummation of the Merger, (B) affect adversely the right of Parent or its Affiliates to control the Company or (C) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation rights and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no such Order shall be in effect.
(f) The Company shall have obtained the consents and waivers set forth on Schedule 7.2(f) (the “Required Consents”).
(g) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3) (the “FIRPTA Certificate”).
(h) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇ (Ed) ▇. ▇▇▇▇▇▇▇, D.O., in office immediately prior to the Effective Time.
(i) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”).
(j) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated no more than five (5) Business Days prior to the Closing Date.
(k) Parent and Merger Sub shall have received an opinion from counsel for the Company in substantially the form attached hereto as Exhibit E.
(l) The Company shall have received the Required Company Stockholder Vote.
(m) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof.
(n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(o) The Company shall not have any outstanding Liens (other than Permitted Liens).
(p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(q) All approvals, waivers and consents necessary for consummation of or benefits in connection with the Merger, or necessary for the consummation of the Merger and the several transactions contemplated hereby shall have timely been obtained from each Governmental Entity.and be in effect at the Closing Date;
(rf) None all transactions, contracts, agreements and guarantees between the Company and the Shareholder or any Affiliate of the Key Employee Agreements and Company Stockholder Agreements or the Shareholder shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect.
(s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and all amounts owed by the Shareholder and his Affiliates to the Company shall have provided Parent with satisfactory evidence thereof.been paid in full;
(tg) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination board of such employees’ employment effective immediately prior to the Effective Time directors and release Shareholder of the Company, Merger Sub Company shall approve this Agreement and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”).closing of the transactions contemplated herein;
(uh) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) board of directors of Parent shall be employed by approve this Agreement and the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing.
(v) shall have each entered into a transition and release agreement providing for release closing of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent.
(w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC.
(x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.transactions contemplated herein;
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be further subject to the satisfaction (fulfillment at or waiver prior to the Effective Time of the following conditions, except as may be waived by Parent in its sole discretion) of the following further conditionswriting pursuant to Section 7.5:
(a) VitalStream shall have performed in all Material respects its agreements and covenants contained in or contemplated by this Agreement required to be performed at or prior to the Effective Time;
(b) The representations and warranties of the Company VitalStream set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof Agreement Date and, except as expressly contemplated or permitted by this Agreement or consented to be Parent in writing, the representations and warranties of VitalStream set forth in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if made at Effective Time (with the term "Effective Time" being substituted for "Agreement Date" throughout Article III).
(c) Parent shall have received a certificate ("VitalStream's Bringdown Certificate") signed by the President and as Chief Executive Officer and the Chief Financial Officer of VitalStream dated the date of the Closing Datecertifying that, except as expressly set forth in VitalStream's Bringdown Certificate or an attachment thereto, the conditions set forth in Section 6.3(a) and (b) with respect to the extent that such representations company of which he/she is an executive officer have been satisfied.
(d) All consents, authorizations, orders and warranties refer specifically to an earlier dateapprovals of (or filings or registrations with) any Governmental Entity required in connection with the execution, in which case such representations delivery and warranties performance of this Agreement by VitalStream shall have been true obtained or made. All consents required from third parties in order for VitalStream to consummate the Merger, including the consents identified on Part 3.6 of the VITALSTREAM DISCLOSURE SCHEDULE, shall have been obtained.
(e) All action required to be taken by or on the part of VitalStream to authorize the execution, delivery and correct in all material respects as performance of such earlier datethis Agreement and the consummation of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and Shareholders of VitalStream, and Parent shall have received a certificate dated the Closing Date signed on behalf certified copies of the Company by the Chief Executive Officer of the Company to resolutions evidencing such effect.authorization;
(bf) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date and Parent shall have received a certificate dated as of the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any changefrom Hill, development or effect which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect.
(d) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of the Executed Written Consent effecting the Required Company Stockholder Vote; and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.
(e) (i) no Action shall be pending or threatened in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (A) prevent consummation of the Merger, (B) affect adversely the right of Parent or its Affiliates to control the Company or (C) restrain or prohibit Parent’s ownership or operation of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or its Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation, taken as a whole, or of Parent; and (ii) no such Order shall be in effect.
(f) The Company shall have obtained the consents and waivers set forth on Schedule 7.2(f) (the “Required Consents”).
(g) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3) (the “FIRPTA Certificate”).
(h) The Company shall have delivered to Parent resignations from the directors and officers of the Company, other than ▇▇▇▇▇▇ (Ed) ▇. & ▇▇▇▇▇▇▇▇ LLP, D.O.counsel to VitalStream, an opinion in the form mutually agreed upon by counsel for Parent and counsel for VitalStream, addressed to Parent and dated as of the Closing;
(g) With respect to each Option that will not terminate at the Effective time, Parent shall have received a duly executed Option Exchange Agreement from the holder of such Option.
(h) Parent shall have received a duly executed counterpart to, and executed, a Shareholder Questionnaire and Subscription Agreement in the form approved by Parent from each of the Shareholders and shall be satisfied, in office immediately prior its reasonable discretion, that all of the Shareholders are, either alone or with a Purchasers Representative, qualified to receive Parent Common Shares in a transaction exempt from the Effective Time.registration requirements of the Securities Act;
(i) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate The holders of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”).
(j) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated no more than five percent (5%) Business Days prior of VitalStream Common Shares outstanding at the record date for the Meeting shall have exercised dissenters or appraisal rights under Delaware Law as of the last date upon which a holder of VitalStream Common Shares could assert such rights; provided, however, that this condition shall be deemed satisfied if the holders of more than 95% of VitalStream Common Shares outstanding at the record date for the Meeting shall have voted in favor of the Merger or otherwise waived their right to the Closing Date.exercise dissenters or appraisal rights;
(kj) Parent and Merger Sub shall have received an opinion from counsel for a certificate, dated as of the Company in substantially Closing Date and signed by the form attached hereto as Exhibit E.Secretary of VitalStream certifying the truth and correctness of copies of VitalStream's Organizational Documents (including all amendments thereto), and incumbency;
(lk) The Company shall have received the Required Company Stockholder Vote.
(m) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof.
(n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(o) The Company shall not have any outstanding Liens (other than Permitted Liens).
(p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company VitalStream shall have delivered a certificate to Parent the 2001 Audited VitalStream Financial Statements and the Financial Statements Certificate, and the shareholders equity, net assets, net loss and current assets numbers in such 2001 Audited VitalStream Financial Statements shall not differ from the shareholders equity, net assets, net loss and current assets numbers in the Unaudited VitalStream Financial Statements for the year ended December 31, 2001 by more than 5% (excluding the effect, if any, of any changes from the numbers in the Unaudited VitalStream Financial Statements for the year ended December 31, 2001 to the 2001 Audited VitalStream Financial Statements attributable to the goodwill and employment compensation related to option/warrant grants issues described in Part 3.5(a) of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effectVITALSTREAM DISCLOSURE SCHEDULE.
(q) All approvals, waivers and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity.
(r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect.
(s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereof.
(t) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”).
(u) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) shall be employed by the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing.
(v) shall have each entered into a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent.
(w) Parent shall have received approval for listing the Parent Shares from the NYSE MKT LLC.
(x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in the regulations promulgated under Section 280G of the Code any such “parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.
Appears in 1 contract
Sources: Merger Agreement (Sensar Corp /Nv/)