Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions at the Closing, any one or more of which may be waived in writing by Buyer and Merger Sub: (a) Each of the representations and warranties of the Company contained in Article IV (other than Company Fundamental Representations), disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company (the “Company Officer’s Certificate”), dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled. (d) The Company shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to the Internal Revenue Service, each in accordance with the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests in the Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Code. (e) The Company shall have received and provided Buyer, at least three (3) Business Days prior to the Closing, (i) with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Date. (f) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company. (g) The RWI Policy shall remain in effect, and shall not have been terminated or modified in any material way. (h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer shall have received the proceeds of the Debt Financing. (i) Either (i) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 of the DGCL with respect to the Merger shall have expired, and the holders of Company Stock representing not more than five percent (5%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived their statutory appraisal rights under Section 262 of the DGCL in connection with the Merger by execution and delivery of a written consent or waiver. (j) Buyer shall have received the following agreements and documents, each of which shall be in full force and effect: (i) the Non-Competition, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed on Schedule 9.2(j)(i); (ii) a form of resignation and release letter, in a form to be agreed by Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately prior to the Closing; and (iii) a certificate executed on behalf of the Company by its Secretary certifying that the Company Board Recommendation and Stockholder Written Consent have been obtained and have not been revoked, rescinded or amended and are in full force and effect as of the date thereof (and attaching thereto true, correct and complete copies of the resolutions containing the Company Board Recommendation and Stockholder Written Consent).
Appears in 1 contract
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of each of the following additional conditions at (it being understood that, if permitted by applicable Law, Buyer and Merger Sub may waive any one or more of the Closingfollowing conditions):
(a) there shall not be in effect any Law or Order enacted, issued, promulgated, enforced or entered by any court or other Governmental Authority of competent jurisdiction, and no litigation, proceeding or other legal restraint or prohibition shall be pending or in effect, including against any Group Company, any one or more members of which may be waived in writing the board of directors of the Company, any one or more officers of the Company or any one or more trustees of the Conserve School Trust (each, a “Restraint”), that disapproves of, objects to, or challenges the authority, the ability, or the propriety of any Group Company, the board of directors of the Company or the trustees of the Conserve School Trust to approve or consummate the transactions contemplated by Buyer and Merger Sub:this Agreement (including by the Attorney General of the State of Illinois or the Attorney General of the State of Wisconsin) or that makes illegal the consummation of the transactions contemplated by this Agreement;
(ab) Each of the Company and the Stockholder Representative shall have performed and complied in all material respects with all covenants, agreements and obligations required to be performed or complied with by the Company and the Stockholder Representative, as applicable, under this Agreement at or prior to the Closing;
(c) the representations and warranties of the Company contained in Article IV (other than Company Fundamental Representations), disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, 3 shall be true and correct as of (without giving effect to any limitation or qualification contained therein relating to “materiality” or “Company Material Adverse Effect” or similar qualifiers) on the date of this Agreement hereof and as of the Closing Date, Date as if though made anew at and as of that date, the Closing Date (except with respect to representations and warranties which speak the extent expressly made as to of an earlier date, in which representations and warranties shall be true and correct case only at and as of such date), except for where the failure of such representations and warranties to be so true and correct (giving effect to the applicable exceptions set forth in the Disclosure Schedule but without giving effect to any inaccuracy limitation or omission that qualification as to “materiality” or “Company Material Adverse Effect” or similar qualifiers set forth therein) has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect on Effect; provided, however, that the Company. Each representations and warranties of the Company Fundamental Representationscontained in Section 3.1 (Organization and Qualification), disregarding all qualifications contained therein relating to materiality or Material Adverse EffectSection 3.2 (Capitalization of the Group Companies), Section 3.3 (Authority; Enforceability), Section 3.16 (Brokers) and Section 3.20 (Transactions with Affiliates) shall be true and correct in all but de minimis respects respects, in each case, on the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only at and as of such date);
(d) between the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date.
(b) Each of the covenants of the Company to be performed at or prior to the Closing no Circumstance shall have been performed in all material respects.
(c) The Company shall have delivered occurred that has had or would reasonably be expected to Buyer a certificate signed by an officer of the Company (the “Company Officer’s Certificate”)have, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled.
(d) The Company shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to the Internal Revenue Service, each in accordance with the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests individually or in the aggregate, a Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Code.Material Adverse Effect;
(e) The Company the Escrow Agent and the Stockholder Representative shall have received each executed and provided Buyer, at least three (3) Business Days prior delivered signatures to the Closing, (i) with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable Escrow Agreement to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Date.Buyer;
(f) Since the date of this Agreement, there applicable waiting period under the HSR Act shall not have occurred any Material Adverse Effect with respect to the Company.expired or been terminated;
(g) The RWI Policy no Governmental Authority with regulatory authority over any Group Company or the Conserve School Trust shall remain in effecthave objected to, and shall not have been terminated or modified in any material way.disapproved of, the terms of, or the consummation of the transactions contemplated by, this Agreement;
(h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer the Company shall have received obtained the proceeds of the Debt Financing.
(i) Either (i) the period during which any holders of any class Stockholder Consent and delivered, or series of Company Stock can exercise their statutory appraisal rights under Section 262 of the DGCL with respect to the Merger shall have expired, and the holders of Company Stock representing not more than five percent (5%) of the votes entitled caused to be cast by holders delivered, a copy of Company Stock entitled such Stockholder Consent to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rightsBuyer; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived their statutory appraisal rights under Section 262 of the DGCL in connection with the Merger by execution and delivery of a written consent or waiver.
(j) Buyer shall have received the following agreements and documents, each of which shall be in full force and effect:and
(i) the Non-CompetitionCompany shall have delivered, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed on Schedule 9.2(j)(i);
(ii) a form of resignation and release letter, in a form or caused to be agreed by delivered, to Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately prior to the Closing; and
(iiideliverables set forth in Section 2.6(b)(i) a certificate executed on behalf of the Company by its Secretary certifying that the Company Board Recommendation and Stockholder Written Consent have been obtained and have not been revoked, rescinded or amended and are in full force and effect as of the date thereof (and attaching thereto true, correct and complete copies of the resolutions containing the Company Board Recommendation and Stockholder Written Consentthrough Section 2.6(b)(viii).
Appears in 1 contract
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions at the Closingconditions, any one or more of which may be waived waived, to the extent permissible, in writing by Buyer and Merger Sub:
(a) (i) Each of the representations and warranties of the Company contained in Article IV Sections 4.1 (Corporate Organization of the Company) (other than the representations set forth in the last two sentences of Section 4.1), 4.2 (Subsidiaries), (other than the representations set forth in the last sentence of Section 4.2), 4.3 (Due Authorization), 4.7(a) and the second sentence of 4.7(b) (Capitalization of Subsidiaries) and 4.16 (Brokers’ Fees) (in each case, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect) shall be true and correct in all material respects as of the date hereof and as of the Closing Date, as if made anew at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall have been true and correct in all material respects at and as of such date, (ii) each of the representations and warranties of the Company Fundamental Representations)contained in Sections 4.6 (Capitalization of the Company) (in each case, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect) shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing Date, as if made anew at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall have been true and correct in all respects (other than de minimis inaccuracies) at and as of such date and (iii) each of the other representations and warranties of the Company contained in Article IV, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement hereof and as of the Closing Date, as if made anew at and as of that such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be have been true and correct at and as of such date, except in the case of this clause (iii) for any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date.
(b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects.
(c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company (the “Company Officer’s Certificate”)Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a9.2(a) and Section 9.2(b9.2(b) have been fulfilled.
(d) Since the date hereof, there shall not have occurred an event, development or change that has had, or would reasonably be expected to have, a Material Adverse Effect on the Company.
(e) The Company shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to the Internal Revenue Service, each in accordance with the requirements of Treasury Regulations Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and a notice to the IRS, signed by the Company, that interests satisfies the requirements of Treasury Regulation Section 1.897-2(h)(2); provided, however, that notwithstanding the foregoing, the sole remedy under this Agreement in respect of any Person for the failure of the Company are not (and during the relevant period have not beento deliver such certificate specified in this Section 9.2(e) “United States real property interests” within the meaning to Buyer shall be to withhold in accordance with Section 3.12 any Taxes required to be withheld by such Person by reason of Section 897(c)(1) of the Codesuch failure from any payment otherwise payable pursuant to this Agreement.
(ef) The Company shall have received and provided Buyer, at least three (3) Business Days prior to the Closing, (i) with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable delivered to Buyer setting forth duly executed Written Consents from the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Date.
(f) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the CompanyApproving Stockholders.
(g) The RWI Policy Company shall remain in effecthave delivered, and shall not have been terminated or modified in any material waycaused to be delivered, to Buyer the items contemplated by Section 3.2.
(h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer shall have received the proceeds None of the Debt FinancingRequired Approvals shall be conditioned on or require by its terms (i) the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, particular assets, categories of assets or material lines of business of the Company or any of its Subsidiaries or Buyer or any of its Affiliates, (ii) termination of any existing relationships or contractual rights and obligation of Buyer or its Affiliates or the Company and its Subsidiaries, or (iii) any action that limits their freedom of action with respect to any of the assets or business of Buyer or any of its Affiliates or the Company or any of its Subsidiaries or their ability to retain any of their assets or lines of business (any such condition, a “Burdensome Condition”).
(i) Either (i) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 of the DGCL with respect to the Merger No Antitrust Authority shall have expired, and the holders filed a lawsuit in a court of Company Stock representing not more than five percent (5%) of the votes entitled competent jurisdiction related to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived their statutory appraisal rights under Section 262 of the DGCL in connection with the Merger by execution transactions contemplated hereby that remains pending and delivery of imposes or seeks to impose a written consent Burdensome Condition and there shall not be in force any applicable Governmental Order imposing under any Antitrust Law a Burdensome Condition related to the transactions contemplated hereby (or waivera Burdensome Condition related to the transactions contemplated hereby that would become effective upon the Closing).
(j) Buyer The Company shall have received acquired one hundred percent (100%) of the following agreements and documentsequity interests of the Japan Subsidiary in accordance with Section 6.7, each subject only to payment of which shall be the Supreme US Call Option Purchase Price as provided in full force and effect:Section 3.4(b).
(ik) the Non-Competition, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed The condition set forth on Schedule 9.2(j)(i);
(ii9.2(k) a form of resignation and release letter, in a form to be agreed by Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately prior to the Closing; and
(iii) a certificate executed on behalf of the Company by its Secretary certifying that the Company Board Recommendation and Stockholder Written Consent shall have been obtained and have not been revoked, rescinded or amended and are in full force and effect as of the date thereof (and attaching thereto true, correct and complete copies of the resolutions containing the Company Board Recommendation and Stockholder Written Consent).satisfied
Appears in 1 contract
Sources: Merger Agreement (V F Corp)
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, complete the Merger are subject to the satisfaction fulfillment of each of the following additional conditions at the Closingconditions, any one or more of which may be waived in writing by Buyer and Merger SubBuyer:
(a) Each The representations and warranties of Target contained in this Agreement (without regard to any materiality exceptions or provisions set forth therein and as qualified by the Target Disclosure Statement) shall be true and correct in all material respects as of the Effective Time with the same force and effect as if made at the Effective Time, except: (i) for changes specifically permitted by this Agreement, and (ii) that the accuracy of the representations and warranties of the Company contained in Article IV (other than Company Fundamental Representations)which, disregarding all qualifications contained therein relating to materiality or Material Adverse Effectby their terms, shall be true and correct speak as of the date of this Agreement and as of the Closing Date, as if made anew at and or some other date shall be determined as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date.
(b) Each of the covenants of the Company to be performed at or prior to the Closing Target shall have been performed performed, in all material respects, all the covenants required by this Agreement to be performed by it on or before the Closing.
(c) The Company approval of the adoption of this Agreement by a majority of the outstanding shares of Target Common Stock and the shares of Target Common Stock issuable upon conversion of Target Preferred Stock, voting together as a single class, shall have delivered to Buyer a certificate signed by an officer of been obtained at the Company (the “Company Officer’s Certificate”), dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilledTarget Special Meeting or any adjournment or postponement thereof.
(d) The Company No Target Material Adverse Effect shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to occurred since the Internal Revenue Service, each in accordance with the requirements date of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests in the Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Codethis Agreement.
(e) The Company Target shall have received and provided Buyerfurnished a certificate, at least three (3) Business Days prior to signed by the ClosingChief Executive Officer, (i) certifying compliance with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (iithe conditions set forth in Sections 7.2(a), (ivb) and (vic) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Datethis Agreement.
(f) Since All consents, approvals, notifications, disclosures, filings and registrations listed or required to be listed in Schedule 4.3 of the date of this Agreement, there Target Disclosure Statement shall not have occurred any Material Adverse Effect with respect to the Companybeen obtained or made.
(g) The RWI Policy No Law shall remain in effectbe pending, and enacted, entered, promulgated, enforced or threatened by any Governmental Entity which prohibits or would prohibit the completion of the Merger or otherwise makes or would make it illegal, nor shall not any Governmental Entity have been terminated instituted or modified threatened to institute any Action seeking to enjoin, restrain or prohibit completion of the Merger. No Action shall be pending or threatened relating in any material wayway to this Agreement or the transactions contemplated herein or seeking to prohibit or limit, in any respect, Buyer's ability to vote or otherwise exercise any rights with respect to any of the shares of Target Common Stock or which could materially and adversely affect the business or prospects of Target or the right of Buyer, Target or any other Buyer Subsidiary to own the assets or operate the business of Target, or realize the benefits of this Agreement.
(h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer shall have received a written opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP, counsel to Target dated the proceeds of Closing Date, containing the Debt Financingconclusions set forth on Exhibit D attached hereto.
(i) Either (i) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 Each of the DGCL Key Employees shall remain continuously employed by Target on substantially the same terms and with respect to substantially the Merger same responsibilities as on the date hereof and the Target shall have expired, and the holders of Company Stock representing not more than five percent (5%) no knowledge that any of the votes entitled Key Employees has any intention to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived terminate their statutory appraisal rights under Section 262 of the DGCL in connection employment with the Merger by execution and delivery of a written consent or waiverSurviving Corporation.
(j) Buyer shall Immediately prior to the Effective Time, Target will have received the following agreements and documents, each of which shall be in full force and effect:
(i) the Non-CompetitionWorking Capital of not less than $850,000, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed on Schedule 9.2(j)(i);
(ii) a form Total Assets of resignation not less than $3.5 Million, and release letter, (iii) cash of not less than $600,000 (except that in a form the event that Target has not purchased servers satisfactory to be agreed by Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately for cash prior to the Closing; andEffective Time, $850,000).
(iiik) a certificate executed on behalf Not more than 5% of the Company by its Secretary certifying that issued and outstanding shares of Target Common Stock shall be Dissenting Shares.
(l) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will enter into an agreement with the Company Board Recommendation and Stockholder Written Consent Surviving Corporation amending or terminating his existing commission arrangement with the Target on terms satisfactory to Buyer.
(m) There shall have been obtained and have no indication that Tail Wind will not been revoked, rescinded or amended and are accept the Preferred Settlement Closing Payment in full force satisfaction of all rights, claims and effect as obligations of the date thereof Target, Surviving Corporation of Buyer to Tail Wind (other than Tail Wind's rights contemplated under the Preferred Settlement Agreement and attaching thereto truethe attachments thereto), correct and complete copies Tail Wind shall have taken no action to exercise any right in may have as a holder of Target Preferred Stock or under any contract or arrangement with Target, other than as permitted in the resolutions containing the Company Board Recommendation and Stockholder Written Consent)Preferred Settlement Agreement.
Appears in 1 contract
Sources: Merger Agreement (Infousa Inc)
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction on or prior to the Closing Date of the following additional conditions at the Closingconditions, any one or more of which may be waived in writing by Buyer and Merger Sub:
(a) Each of the representations and warranties of the Company contained in Article IV (other than Company the Fundamental Representations), disregarding all qualifications contained therein herein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except except, in each case, for any inaccuracy or omission failure of such representations and warranties to be so true and correct that would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company The Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, Representations shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, in each case other than de minimis inaccuracies.
(b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects.
(c) The Company shall have delivered to Buyer a certificate signed by an authorized officer on behalf of the Company (the “Company Officer’s Certificate”)Company, dated as of the Closing Date, certifying thatcertifying, to the knowledge and belief of such authorized officer, that the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilledsatisfied.
(d) The Company shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to the Internal Revenue Service, each in accordance with the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests in the Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Code.
(e) The Company shall have received and provided Buyer, at least three (3) Business Days prior to the Closing, (i) with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Date.
(f) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company.
(g) The RWI Policy shall remain in effect, and shall not have been terminated or modified in any material way.
(h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer shall have received the proceeds of the Debt Financing.
(i) Either (i) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 of the DGCL with respect to the Merger shall have expired, and the holders of Company Stock representing not more than five percent (5%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived their statutory appraisal rights under Section 262 of the DGCL in connection with the Merger by execution and delivery of a written consent or waiver.
(j) Buyer shall have received the following agreements and documents, each of which shall be in full force and effect:
(i) the Non-Competition, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed on Schedule 9.2(j)(i);
(ii) a form of resignation and release letter, in a form to be agreed by Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately prior to the Closing; and
(iii) a certificate executed on behalf of the Company by its Secretary certifying that the Company Board Recommendation and Stockholder Written Consent have been obtained and have not been revoked, rescinded or amended and are in full force and effect as of the date thereof (and attaching thereto true, correct and complete copies of the resolutions containing the Company Board Recommendation and Stockholder Written Consent).
Appears in 1 contract
Sources: Merger Agreement (United Rentals North America Inc)
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions at the Closingconditions, any one or more of which may be waived in writing by Buyer and Merger Sub:
(a) Each of the representations and warranties of the Company contained in Article IV (other than Company Fundamental Representations)IV, disregarding all qualifications contained therein herein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date of this Agreement hereof and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for (i) any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on Effect, (ii) notwithstanding Section 9.2(a)(i), (A) the Company. Each of the Company Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but respects except for such inaccuracies which are de minimis respects as of minimis, individually or in the date of this Agreement aggregate and as of (B) the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations contained in Section 4.11 and warranties Section 4.20 shall be true and correct in all but de minimis respects at and as of such datematerial respects.
(b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects.
(c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company (the “Company Officer’s Certificate”)Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled.
(d) The Company shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to the Internal Revenue Service, each in accordance with the requirements of Treasury Regulations Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) dated within thirty (30) days prior to the Closing Date certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests in along with written authorization for Buyer to deliver such notice form to the IRS on behalf of the Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Codeupon Closing.
(e) There shall not have occurred since the Company Balance Sheet Date any Material Adverse Effect nor shall events have occurred that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(f) The Company Required Third Party Consents shall have received and provided Buyer, at least three (3) Business Days prior to the Closing, (i) with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof; collectively, the “Debt Payoff Recipients”), been obtained in form and substance reasonably acceptable satisfactory to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Date.
(f) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the CompanyBuyer.
(g) The RWI Policy Restructuring shall remain in effect, and shall not have been terminated or modified in any material waycompleted pursuant to the Restructuring Step Plan.
(h) The Existing Credit Agreement Amendment Company shall remain in effect have delivered to Buyer the Second Amended and Restated License Agreements executed by each of TeneoTwo, TeneoFour and TeneoTen and such Second Amended and Restated License Agreements shall not have been terminated or modified and shall be in any material way, full force and Buyer shall have received the proceeds of the Debt Financingeffect.
(i) Either No less than three (i3) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 of the DGCL with respect days prior to the Merger shall Closing Date, the Company will have expiredobtained and delivered to Buyer true, correct and the holders complete copies of Written Consents executed by Company Stock Stockholders representing not more than five percent (5%a) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast represented by holders all outstanding shares of Company Capital Stock entitled to exercise voting together as a single class on an as-converted basis and (b) each Pre-Closing Holder who owns in excess of five percent (5%) of the outstanding Company Capital Stock on a fully diluted basis (the “Requisite Stockholder Approval”) and such statutory appraisal rights Requisite Stockholder Approval shall have effectively waived their statutory appraisal rights under Section 262 of been validly obtained and be in full force and effect at the DGCL in connection with the Merger by execution and delivery of a written consent or waiverClosing.
(j) Evidence satisfactory to Buyer shall have received that each Company Benefit Plan intended to be qualified under Section 401(k) of the following agreements and documentsCode has been terminated effective as of the day immediately prior to the Closing pursuant to resolutions duly adopted by the board of directors of the Company sponsoring such Company Benefit Plan(s).
(k) If a 280G Vote is required to be undertaken under Section 7.3(d) hereof, each of which shall be in full force and effect:
(i) the Non-Competition, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by Company shall have solicited from each Person who is eligible to receive a payment that may constitute a “parachute payment” under Section 280G of the persons listed on Schedule 9.2(j)(i);
Code prior to soliciting the Section 280G Approval and, to the extent received by the Company, delivered to Buyer each signed Parachute Payment Waiver and (ii) to the extent any Parachute Payment Waivers are executed, the Company’s shareholders shall have (A) approved, pursuant to the method provided for in the regulations promulgated under Section 280G of the Code, any such “parachute payments” or (B) shall have voted upon and disapproved such “parachute payments,” and, as a form of resignation consequence, such “parachute payments” shall not be paid or provided for in any manner and release letter, in a form to be agreed by Buyer and the Company prior its Affiliates shall not have any Liabilities with respect to Closing, executed by all of the directors and officers of the Company who hold office as of immediately prior to the Closing; and
(iii) a certificate executed on behalf of the Company by its Secretary certifying that the Company Board Recommendation and Stockholder Written Consent have been obtained and have not been revoked, rescinded or amended and are in full force and effect as of the date thereof (and attaching thereto true, correct and complete copies of the resolutions containing the Company Board Recommendation and Stockholder Written Consent)such “parachute payments.”
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, complete the Merger are subject to the satisfaction fulfillment of each of the following additional conditions at the Closingconditions, any one or more of which may be waived in writing by Buyer and Merger SubBuyer:
(a) Each The representations and warranties of Target contained in this Agreement (without regard to any materiality exceptions or provisions set forth therein and as qualified by the Target Disclosure Statement) shall be true and correct in all material respects as of the Effective Time with the same force and effect as if made at the Effective Time, except: (i) for changes specifically permitted by this Agreement, and (ii) that the accuracy of the representations and warranties of the Company contained in Article IV (other than Company Fundamental Representations)which, disregarding all qualifications contained therein relating to materiality or Material Adverse Effectby their terms, shall be true and correct speak as of the date of this Agreement and as of the Closing Date, as if made anew at and or some other date shall be determined as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company Fundamental Representations, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date.
(b) Each of the covenants of the Company to be performed at or prior to the Closing Target shall have been performed performed, in all material respects, all the covenants required by this Agreement to be performed by it on or before the Closing.
(c) The Company approval of the adoption of this Agreement by a majority of the outstanding shares of Target Common Stock and the shares of Target Common Stock issuable upon conversion of Target Preferred Stock, voting together as a single class, shall have delivered to Buyer a certificate signed by an officer of been obtained at the Company (the “Company Officer’s Certificate”), dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilledTarget Special Meeting or any adjournment or postponement thereof.
(d) The Company No Target Material Adverse Effect shall have delivered to Buyer a certificate addressed to Buyer and a notice addressed to occurred since the Internal Revenue Service, each in accordance with the requirements date of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and that interests in the Company are not (and during the relevant period have not been) “United States real property interests” within the meaning of Section 897(c)(1) of the Codethis Agreement.
(e) The Company Target shall have received and provided Buyerfurnished a certificate, at least three (3) Business Days prior to signed by the ClosingChief Executive Officer, (i) certifying compliance with a copy of pay-off letters from each lender or applicable counterparty of Funded Debt (disregarding clauses (iithe conditions set forth in Sections 7.2(a), (ivb) and (vic) of the definition thereof; collectively, the “Debt Payoff Recipients”), in form and substance reasonably acceptable to Buyer setting forth the full amount due and payable as of the Closing Date for the satisfaction and discharge of all Funded Debt (disregarding clauses (ii), (iv) and (vi) of the definition thereof) payable to such Debt Payoff Recipient and the release of all Liens on any assets or properties of the Company or its Subsidiary that secure such Funded Debt (the “Payoff Letters”) and (ii) with documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, that in each case has been requested in writing by the Debt Payoff Recipients at least ten Business Days prior to the Closing Datethis Agreement.
(f) Since All consents, approvals, notifications, disclosures, filings and registrations listed or required to be listed in Schedule 4.3 of the date of this Agreement, there Target Disclosure Statement shall not have occurred any Material Adverse Effect with respect to the Companybeen obtained or made.
(g) The RWI Policy No Law shall remain in effectbe pending, and enacted, entered, promulgated, enforced or threatened by any Governmental Entity which prohibits or would prohibit the completion of the Merger or otherwise makes or would make it illegal, nor shall not any Governmental Entity have been terminated instituted or modified threatened to institute any Action seeking to enjoin, restrain or prohibit completion of the Merger. No Action shall be pending or threatened relating in any material wayway to this Agreement or the transactions contemplated herein or seeking to prohibit or limit, in any respect, Buyer’s ability to vote or otherwise exercise any rights with respect to any of the shares of Target Common Stock or which could materially and adversely affect the business or prospects of Target or the right of Buyer, Target or any other Buyer Subsidiary to own the assets or operate the business of Target, or realize the benefits of this Agreement.
(h) The Existing Credit Agreement Amendment shall remain in effect and shall not have been terminated or modified in any material way, and Buyer shall have received a written opinion from O▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP, counsel to Target dated the proceeds of Closing Date, containing the Debt Financingconclusions set forth on Exhibit F attached hereto.
(i) Either (i) the period during which any holders of any class or series of Company Stock can exercise their statutory appraisal rights under Section 262 Each of the DGCL Key Employees shall remain continuously employed by Target on substantially the same terms and with respect to substantially the Merger same responsibilities as on the date hereof and the Target shall have expired, and the holders of Company Stock representing not more than five percent (5%) no knowledge that any of the votes entitled Key Employees has any intention to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have exercised (and not subsequently withdrawn or waived) such statutory appraisal rights; or (ii) the holders of Company Stock representing at least ninety percent (90%) of the votes entitled to be cast by holders of Company Stock entitled to exercise such statutory appraisal rights shall have effectively waived terminate their statutory appraisal rights under Section 262 of the DGCL in connection employment with the Merger by execution and delivery of a written consent or waiverSurviving Corporation.
(j) Buyer shall Immediately prior to the Effective Time, Target will have received the following agreements and documents, each of which shall be in full force and effect:
(i) the Non-CompetitionWorking Capital of not less than $850,000, Non-Solicitation and Release Agreements, in the form attached hereto as Annex E executed by each of the persons listed on Schedule 9.2(j)(i);
(ii) a form Total Assets of resignation not less than $3.5 Million, and release letter, (iii) cash of not less than $600,000 (except that in a form the event that Target has not purchased servers satisfactory to be agreed by Buyer and the Company prior to Closing, executed by all of the directors and officers of the Company who hold office as of immediately for cash prior to the Closing; andEffective Time, $850,000).
(iiik) a certificate executed on behalf Not more than 5% of the Company by its Secretary certifying that issued and outstanding shares of Target Common Stock shall be Dissenting Shares.
(l) G▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will enter into an agreement with the Company Board Recommendation and Stockholder Written Consent Surviving Corporation amending or terminating his existing commission arrangement with the Target on terms satisfactory to Buyer.
(m) There shall have been obtained and have no indication that Tail Wind will not been revoked, rescinded or amended and are accept the Preferred Settlement Closing Payment in full force satisfaction of all rights, claims and effect as obligations of the date thereof Target, Surviving Corporation of Buyer to Tail Wind (other than Tail Wind’s rights contemplated under the Preferred Settlement Agreement and attaching thereto truethe attachments thereto), correct and complete copies Tail Wind shall have taken no action to exercise any right in may have as a holder of Target Preferred Stock or under any contract or arrangement with Target, other than as permitted in the resolutions containing the Company Board Recommendation and Stockholder Written Consent)Preferred Settlement Agreement.
Appears in 1 contract
Sources: Merger Agreement (Infousa Inc)