Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions: (a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business. (b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects. (c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing. (d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company. (e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c). (g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub. (i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Pretoria Resources Two, Inc), Merger Agreement (Pretoria Resources Two, Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction (or, at or before to the Closingextent legally permissible, of each waiver) of the following further conditions:
(a) During the period from the date Company shall have performed in all material respects all of this Agreement its obligations and covenants hereunder required to be performed by it at or prior to the Closing DateEffective Time, there shall not have occurred a Material Adverse Effect on (ii) the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement and the Closing Date with the same force and effect as though if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date, date and each (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company that are not so qualified shall be true in all material respects.to the foregoing effect;
(cb) The the Company shall have performed received all consents, waivers and complied approvals required in all material respects connection with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Mergertransactions contemplated hereby in connection with the agreements, (b) could contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company;
(c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise control over or manage ownership rights with respect to the Company after stock of the Closing Surviving Corporation; or (civ) which, if adversely determined could have a Material Adverse Effect on the Company.Company or Parent;
(d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and
(e) On the Closing Date, there Dissenting Shares shall be comprise no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation more than fifteen percent (15%) of the Mergerissued and outstanding Company Shares.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (National Holdings Corp), Merger Agreement (Vfinance Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger M▇▇▇▇▇ Sub under this Agreement to consummate the Contemplated Transactions are subject to the satisfaction, fulfillment at or before prior to the Closing, Effective Time of each of the following additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects on and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date with the same force and effect as though such representations and warranties were made on at and as of such date, and each of the date (except for representations and warranties made as of a specified date, which shall speak only as of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (cdate).
(gb) The Company shall have delivered to Parent and Merger Sub a certificatecertificates, dated the date of the Closing, signed by an executive officer of each of the Company, certifying as to the fulfillment of the conditions specified in Section 7.2(a).
(c) Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.
(d) All of the Company Consents shall have been obtained or provided.
(e) All stockholder agreements, voting agreements, registration rights agreements and similar agreements between or among any of the Company, the Subsidiaries and/or the Stockholders set forth on Section 7.2(d) of the Company Disclosure Schedule (“Terminated Stockholder Agreements”), shall have been terminated and shall cease to be of force or effect.
(f) Parent shall have received, in a form reasonably acceptable to Parent, (i) a certification that meets the requirements of Treasury Regulations Sections 1.897-2(h)(1) and 1.1445-2(c)(3), certifying that the interests in the Company do not constitute “United States real property interests” within the meaning of Code Section 897(c)(1) and the Treasury Regulations promulgated thereunder, and (ii) notice to the IRS, in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice and a copy of the certification to the IRS on behalf of the Company after the Closing, in each case properly completed and executed by Company.
(g) Parent shall have received, in a form reasonably acceptable to Parent, a certificate from the jurisdiction of incorporation of Company dated within five (5) Business Days prior to the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to that the Merger adopted by its Members attached thereto, Company is in good standing and (iii) resolutions with respect to the authorization that all applicable franchise Taxes and fees of the Note, Company through and (iii) incumbency and signatures including the date of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall such certificate have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentpaid.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Envoy Technologies, Inc.), Merger Agreement (Blink Charging Co.)
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, satisfaction or (to the extent permitted by Law) waiver by Parent at or before prior to the Closing, of each Effective Time of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified contained in this Agreement, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct as of the date hereof and as of the Closing Date as though made on or as of such date, except for (i) any such representation and warranty expressly speaking as of an earlier date, in all material respects.which case such representation and warranty shall be true and correct as of such earlier date, and (ii) such failures of such representations and warranties to be true and correct (as of any date) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect as of the Effective Time with the same effect as though made as of the Effective Time;
(cb) The the Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.Effective Time;
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed Effective Time and signed by a duly authorized Member certifying the fulfillment its chief executive officer or another senior officer on behalf of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized MemberCompany, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization such officer’s knowledge on behalf of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent the effect that the conditions set forth in Section 7.2(a) and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.Section 7.2(b) have been satisfied; and
(id) All Consents of all Third Parties and Governmental Authorities since the date hereof, there shall not have been obtained any effect, change, event or occurrence that are necessaryhas had or would reasonably be expected to have, individually or in the opinion of Parent counselaggregate, in connection with (a) the execution and delivery by the a Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Thestreet, Inc.), Merger Agreement (theMaven, Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to effect the Merger are subject to the satisfaction, at satisfaction (or before the Closing, of each waiver by Parent in its sole discretion) of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true in all respects on and correct at and as of the date of this Agreement and the Closing Date with the same force and effect as though if made on at and as of such date (except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and each warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company that are not so qualified shall be true in all material respectsby the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.
(cb) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company it under this Agreement at or prior to the ClosingClosing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.
(c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.
(d) There No Action shall not be threatened, instituted or pending any Proceeding by or before any court or a Governmental Authority requesting or looking toward an Order that Entity (ai) restrains or prohibits the seeking to prevent consummation of the Merger, (bii) could have a Material Adverse Effect seeking to impose any limitation on Parent’s ability the right of Parent to exercise control over or manage the Company after the Closing and its Subsidiaries or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Dateany other Affiliate of Parent, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect seeking to restrain or prohibit the authorization Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the Note, and (iii) incumbency and signatures business or assets of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the Merger, and copies business or assets of all such Consents shall have been delivered to Parentthe Company or Parent or any of their respective Subsidiaries or Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Lone Star Technologies Inc), Merger Agreement (United States Steel Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations respective obligation of Parent and Merger Sub under this Agreement are to effect the Merger is subject to the satisfaction, at satisfaction or before waiver on or prior to the Closing, of each Closing Date of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(bA) The representations and warranties of the Company contained herein that are qualified as to materiality set forth in Article II (other than those set forth in Sections 2.01, 2.02(a)–(d), 2.04, 2.08(a), 2.19, and 2.20) shall be true in all respects on and correct as of the date of this Agreement and as of the Closing Date with the same force and effect as though made on and as of such date, except to the extent any such representation and each warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect,” it being agreed that with respect to any representation or warranty with respect to which effects resulting from or arising in connection with the matters set forth in clause (G) of the definition of the term “Company Material Adverse Effect” are not excluded in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur, such effect shall similarly not be excluded for purposes of this clause (A)), (B) the representations and warranties of the Company that are not so qualified set forth in Sections 2.01, 2.04, 2.19 and 2.20 shall be true in all material respects.
(c) The Company shall have performed and complied correct in all material respects with all covenants, agreements, obligations and conditions required by as of the date of this Agreement to be performed or complied with by and as of the Company at or prior Closing Date as though made on and as of such date, except to the Closing.
extent any such representation and warranty expressly relates to a specified date (d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation in which case on and as of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions such specified in Sections 7.02(adate), (bC) the representation and warranty of the Company set forth in Section 2.02(a)–(d) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date, except to the extent any such representation and warranty expressly relates to a specified date (cin which case on and as of such specified date).
(g) The Company shall have delivered , except where the failure of any such representations and warranties to Parent be true and correct, would not, individually or in the aggregate, be reasonably expected to result in additional net cost, expense or liability to the Company, Parent, Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached theretoor their respective affiliates of $15,000,000 or more, and (iiiD) resolutions with respect to the authorization representations and warranties of the Note, Company set forth in Section 2.08(a) shall be true and (iii) incumbency and signatures correct in all respects as of the persons who have executed date of this Agreement and any other documents, certificates and agreements to be executed and delivered at as of the Closing pursuant Date as though made on and as of such date, except to this Agreementthe extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date).
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction (or written waiver, at if permissible under applicable Law) on or before prior to the Closing, of each Closing of the following further conditions:
(a) During (i) the period from the date Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing DateEffective Time, there (ii) the Fundamental Representations shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations be true and warranties correct at and as of the Company contained herein Effective Time in all material respects as if made at and as of such time (except to the extent that are qualified any such representation and warranty expressly speaks as to materiality of an earlier date, in which case such representation and warranty (as so read) shall be true in all material respects on and as of the Closing Date with the same force and effect as though made on and as of such earlier date, ); and each of (iii) the representations and warranties of the Company (other than the Fundamental Representations) that are not so qualified contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (which shall, for the purposes of this Section 8.2(a), be read without any qualification contained therein as to materiality or Material Adverse Effect of the Company) shall be true in all material respects.
at and as of the Effective Time as if made at and as of such time (c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior except to the Closing.
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty (das so read) There shall be true as of such earlier date), with such exceptions as have not had and would not reasonably be threatenedexpected to have, instituted whether individually or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits in the consummation of the Mergeraggregate, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.;
(eb) On No Material Adverse Effect on the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered occurred since the date hereof and be continuing;
(c) Holders of no greater than ten percent (10%) of the issued and outstanding shares of Common Stock shall have demanded appraisal for such shares in accordance with Delaware Law (excluding such holders who have failed to perfect, withdrawn or otherwise lost such right to appraisal) prior to the Closing; and
(d) Parent shall have received a certificate, certificate dated as of the Closing Date, executed by a duly authorized Member certifying the fulfillment Date signed on behalf of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated by the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization chief executive officer or another senior officer of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent the effect that the conditions set forth in Section 8.2(a) and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(iSection 8.2(b) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentsatisfied.
Appears in 2 contracts
Sources: Merger Agreement (Gen Probe Inc), Merger Agreement (Hologic Inc)
Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, satisfaction or (to the extent permitted by Law) waiver by Parent at or before prior to the Closing, of each Merger Closing Date of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified (i) set forth in Section 4.2(a) and (c) (Capitalization; Subsidiaries) and Section 4.3 (Authority Relative to Agreement) shall be true and correct in all material respects.respects at and as of the date of this Agreement and the Merger Closing Date (except, with respect to Section 4.2(a) and (c), to the extent that any inaccuracies would be de minimis, in the aggregate), (ii) set forth in Section 4.10(a) (Absence of Company Material Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date, and (iii) set forth in Article IV hereof (other than Section 4.2(a) and (c), Section 4.3 and Section 4.10(a)), without giving effect to any qualifications as to materiality or Company Material Adverse Effect or other similar qualifications contained therein, shall be true and correct at and as of the date of this Agreement and the Merger Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except in the case of clause (ii) for such failures to be true and correct as would not constitute, individually or in the aggregate, a Company Material Adverse Effect;
(cb) The the Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.Merger Closing Date;
(c) since the date of this Agreement, there shall not have occurred any change, effect, development or circumstance that, individually or in the aggregate, constitutes or is reasonably likely to constitute a Company Material Adverse Effect; and
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Merger Closing Date, executed Date and signed by a duly authorized Member certifying the fulfillment an executive officer of the Company, certifying to the effect that the conditions specified set forth in Sections 7.02(aSection 7.2(a), (bSection 7.2(b) and (c).
(gSection 7.2(c) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentsatisfied.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (WMS Industries Inc /De/)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under to consummate the transactions contemplated by this Agreement are shall be subject to the satisfactionfulfillment or Parent’s waiver, at or before prior to the Closing, of each of the following conditions:
(a) During Each of the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The other representations and warranties of the Company contained herein that are qualified as to materiality in Article III shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on at and as of such date, and each of the date (except those representations and warranties that address matters only as of the Company that are not so qualified a specified date, which shall be true and correct in all material respectsrespects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a Company Material Adverse Effect.
(cb) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations covenants and conditions required by this Agreement and each of the Ancillary Agreements to be performed or complied with by the Company at or prior to or on the ClosingClosing Date.
(c) From the date of this Agreement, there shall not have occurred any Company Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Company Material Adverse Effect.
(d) There No Governmental Order shall not be threatenedin effect which restrains, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains hinders or prohibits or threatens to restrain, hinder or prohibit the consummation of the Mergertransactions contemplated by this Agreement; and there shall not have been threatened, (b) could have nor shall there be pending, any Action by a Material Adverse Effect on Parent’s ability Person or before any Governmental Authority which is reasonably likely to exercise control over restrain, hinder, prohibit, delay or manage challenge the Company after validity of any of the Closing or (c) could have a Material Adverse Effect on the Companytransactions contemplated by this Agreement.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated duly executed counterparts to the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified Ancillary Agreements and such other documents and deliverables set forth in Sections 7.02(a), (b) and (c)Section 2.11.
(gf) The Holders of no more than two percent (2.00%) of the outstanding Company Capital Stock as of immediately prior to the Effective Time, in the aggregate, shall have delivered exercised, or remain entitled to Parent and Merger Sub a certificateexercise, dated statutory appraisal rights pursuant to Section 262 of the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions DGCL with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization such shares of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementCompany Capital Stock.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Harvest Health & Recreation Inc.), Merger Agreement
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction (or before the Closing, of each waiver by Parent and Merger Sub) of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true and accurate as of the Closing Date as if made on and as of the Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate (without giving effect to any limitation relating to materiality or Company Material Adverse Effect set forth therein) would not, individually or in all material respects.the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(cb) The the Company shall have complied with and performed and complied in all material respects with all covenants, agreements, its covenants and obligations and conditions hereunder required by this Agreement to be performed or complied with or performed by the Company it at or prior to the Closing.;
(c) Parent shall have received a certificate signed by the chief financial officer of the Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(d) There From the date of this Agreement through the Effective Time there shall not have occurred a Company Material Adverse Effect; provided, however, a Company Material Adverse Effect shall not be threateneddeemed to have occurred solely for purposes of this Section 7.2(d) if the fact, instituted change, event, factor, condition, circumstance, development or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a effect giving rise to such Company Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Companyhas been fully remedied, such that no remaining impact therefrom is present, all as determined by Parent in good faith.
(e) On the Closing DateThe Rights Agreement shall have been terminated or, there if not terminated, Parent shall be no effective Order issued have received a certificate signed by a court of competent jurisdiction restraining or prohibiting the consummation an officer of the Company that such Rights Agreement does not apply to the Merger.; and
(f) The Company Not more than 15% of the Company’s shareholders shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c)exercised dissenter’s rights.
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Open Text Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before waiver (where permissible) on or prior to the Closing, of each Closing Date by Parent of the following additional conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified contained in this Agreement (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect) shall be true and correct, in all material respects.each case as of the Effective Time as though made on and as of the Effective Time, except (i) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date, subject to the qualifications in (i) above; and (iii) for changes expressly permitted or contemplated by the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by a duly authorized officer of the Company to such effect;
(cb) The the Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at on or prior to the Closing.Effective Time, and Parent shall have received a certificate signed on behalf of the Company by a duly authorized officer of the Company to that effect;
(c) the Company shall have received, each in form and substance reasonably satisfactory to Parent, all third party consents necessary to consummate the Transactions, the failure of which to obtain would reasonably be expected to have a Company Material Adverse Effect;
(d) There no event or events shall not have occurred, which, individually or in the aggregate, would reasonably be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could expected to have a Company Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.Effect;
(e) On the Closing Date, there Company shall be no effective Order issued by a court have executed the Certificate of competent jurisdiction restraining or prohibiting Merger for filing pursuant to SECTION 1.02 hereof with the consummation Secretary of State of the Merger.State of Delaware;
(f) The the Company shall have delivered to Parent a certificate, dated the Closing Date, fully executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) Board Resignations and (c).Officer Resignations;
(g) The there shall not be pending or threatened any suit, action, investigation or proceeding to which a Governmental Authority is a party (i) seeking to restrain or prohibit the 52 consummation of the Transactions or seeking to obtain from Parent or the Company any damages that are material or (ii) seeking to prohibit or limit the ownership or operation by Parent or the Company of any material portion of their respective businesses or assets;
(h) Dissenting Shares shall comprise not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time; and
(i) the Company shall have delivered to Parent amended that certain Product Purchase Agreement by and Merger Sub a certificate, dated between the Closing Date, executed by a duly authorized Member, certifying as Company and Alpharma to (i) its Organizational Documents, provide that the assignment and assumption of certain GPO contracts from the Company to Alpharma was in part and not in whole and (ii) resolutions obtain all third party consents associated with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization consummation of the Note, and (iii) incumbency and signatures of transactions contemplated by the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Product Purchase Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are to consummate the Merger is subject to the satisfaction, fulfillment at or before prior to the Closing, of each Effective Time of the following conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub to the extent permitted by applicable law:
(a) During The Company shall have obtained all of the period from waivers, permits, consents, approvals or other authorizations, and effected all of the date of this Agreement registrations, filings and notices, referred to in Section 6.1 that are reasonably deemed necessary by Parent to consummate the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.Merger;
(b) The representations and warranties of the Company contained herein that are qualified as to materiality set forth in Section 6.2 shall be true and correct in all material respects on and (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects) as of the Closing Date Effective Time, with the same force and effect as though if made on and as of such datethe Effective Time, and each of the except for representations and warranties made as of the Company that are not so qualified a specific date, which shall be true and correct in all material respects (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects.) as of such specific date;
(c) The Company shall have performed and or complied with in all material respects with all covenants, agreements, obligations its agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at under this Agreement as of or prior to the Closing.Effective Time; and
(d) There From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company, nor shall there have occurred any event or development which could reasonably be threatenedlikely to result in a Material Adverse Effect upon the business of the Company in the future.
(e) A final draft of a Current Report on Form 8-K (the “Super 8-K”), instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits which discloses the consummation of the Merger, (band which also includes all information required to be reported with respect to a “reverse merger” transaction with a public “shell company” including, without limitation, the information required pursuant to Item 2.01(f) could – Completion of Acquisition or Disposition of Assets and Item 5.06 – Change in Shell Company Status - shall have a Material Adverse Effect on Parent’s ability to exercise control over or manage been prepared by the Company and approved by Parent and their respective legal advisors, to be filed with the SEC within four (4) business days after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the MergerClosing.
(f) The Company Parent shall have delivered to Parent a certificate, dated be satisfied that the Closing Date, executed by a duly authorized Member certifying the fulfillment issuance of the conditions specified Parent Common and the assumption of the Company Options in Sections 7.02(a)connection with the Merger shall be exempt from registration under Regulation D of the Securities Act and Section 4(2) of the Securities Act, (b) or Regulation S promulgated by the SEC, and (c)all applicable state securities laws.
(g) The Company shall have delivered prepare and, subject to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization Parent’s approval of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to thereof (which approval shall not be unreasonably withheld or delayed), Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in file with the opinion of Parent counselSEC the information required by Rule 14f-1 promulgated under the Exchange Act, in connection with (a) the execution and delivery by proposed change in the Company or (b) directors serving on the consummation by the Company Board of Directors of Parent after the Merger, and copies shall mail such information as required, to each of all such Consents shall have been delivered Company’s stockholders prior to Parentthe Closing.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each waiver (where permissible) of the following additional conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this Agreement shall be true in all respects on and correct as of the Closing Date with the same force and effect Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure to be so true and correct (without giving effect to any qualification as to "materiality" or "Company Material Adverse Effect" set forth therein) would not have or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and each Parent shall have received a certificate of the representations and warranties Chief Executive Officer or Chief Financial Officer of the Company that are not so qualified shall be true in all material respects.to such effect;
(cb) The the Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.Effective Time, except where the failure to so comply would not have or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and Parent shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of the Company to that effect;
(c) Parent shall have received the opinion of Wachtell, Lipton, Rosen & Katz, counsel to Parent, dated as of the Closing Date, based ▇▇▇▇ fac▇▇, representations and assumptions set forth in or referred to in such opinion, to the effect that for U.S. federal income tax purposes, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, Wachtell, Lipton, Rosen & Katz may require and shall be entitled to rely upon represent▇▇▇▇▇s, ▇▇▇▇ngs and opinions of Parent, the Company or others, including representations substantially in the form of EXHIBITS E AND F, respectively;
(d) There shall The holders of not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation more than 5% of the Merger, (b) could outstanding Company Common Stock shall have a Material Adverse Effect on Parent’s ability to exercise control over or manage demanded appraisal of their Shares in accordance with the Company after the Closing or (c) could have a Material Adverse Effect on the Company.DGCL; and
(e) On Parent and the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered received the opinion of Kirkland & Ellis, counsel to Parent a certificatethe Company, dated as of the Closing date hereof ▇▇▇ ▇▇ of ▇▇▇ ▇losing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
the Company, to the effect that, for United States federal income tax purposes: (i) All Consents the limitations on each transferee's ownership rights set forth in the 2000 Stock Purchase Agreements between the Company and the holders of all Third Parties Class A Common Stock (the "2000 STOCK PURCHASE AGREEMENTS") constitute "nonlapse restrictions" within the meaning of Treasury Regulation Section 1.83-3(h), (ii) each person who has entered into a 2000 Stock Purchase Agreement with the Company owns the Class A Common Stock covered by such person's 2000 Stock Purchase Agreement (and Governmental Authorities shall have been obtained that are necessaryowned such stock as of the date of this Agreement), and (iii) such stock was "transferred" to such person prior to the date of this Agreement and such stock is "substantially vested" and not subject to a "substantial risk of forfeiture" in the hands of such person (and became so prior to the date of this Agreement), in each case, within the opinion meaning of Parent counsel, in connection with (a) Code Section 83 and the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentTreasury Regulations thereunder.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The Solely if the Offer Termination shall have occurred, then the respective obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, satisfaction or (to the extent permitted by Law) waiver by Parent at or before prior to the Closing, of each Effective Time of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified (i) set forth in, Section 3.4 (Authority Relative to the Agreement), Section 3.11(b) (Absence of Certain Changes or Events), Section 3.21 (Opinion of Financial Advisor), Section 3.22 (Takeover Statutes) and Section 3.23 (Vote Required) shall be true and correct in all respects at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time, (ii) set forth in Section 3.3 (Capitalization) shall be true and correct in all material respects.respects at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) set forth in Article III (other than the sections of Article III referred to in clause (i) or (ii) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date), except in the case of clause (iii) for such failures to be true and correct as would not have, individually or in the aggregate, a Company Material Adverse Effect; provided, solely for purposes of clause (ii) above, if one or more inaccuracies in Section 3.3 would be reasonably likely to cause the aggregate amount required to be paid by Parent or Merger Sub to consummate the Offer, the Merger, exercise the Top-Up Option, refinance the indebtedness of the Company, acquire, directly or indirectly, all of the outstanding equity interests in the Company’s subsidiaries and pay all fees and expenses in connection therewith to increase by $500,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (ii) of this Section 6.2(a);
(b) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement on or prior to the Effective Time; and
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed Effective Time and signed by a duly authorized Member certifying the fulfillment its chief executive officer or another senior officer on behalf of the Company, certifying to the effect that the conditions specified set forth in Sections 7.02(a), (bSection 6.2(a) and (c).
(gSection 6.2(b) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentsatisfied.
Appears in 1 contract
Sources: Merger Agreement (MModal Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction (or before the Closing, of each waiver by Parent and Merger Sub) of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true and accurate as of the Closing Date as if made on and as of the Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate (without giving effect to any limitation relating to materiality or Company Material Adverse Effect set forth therein) would not, individually or in all material respects.the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(cb) The the Company shall have complied with and performed and complied in all material respects with all covenants, agreements, its covenants and obligations and conditions hereunder required by this Agreement to be performed or complied with or performed by the Company it at or prior to the Closing.;
(c) Parent shall have received a certificate signed by the chief financial officer of the Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(d) There from the date of this Agreement through the Effective Time there shall not have occurred a Company Material Adverse Effect; provided, however, a Company Material Adverse Effect shall not be threateneddeemed to have occurred solely for purposes of this Section 7.2(d) if the fact, instituted change, event, factor, condition, circumstance, development or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a effect giving rise to such Company Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Companyhas been fully remedied, such that no remaining impact therefrom is present, all as determined by Parent in good faith.
(e) On the Closing DateThe Rights Agreement shall have been terminated or, there if not terminated, Parent shall be no effective Order issued have received a certificate signed by a court of competent jurisdiction restraining or prohibiting the consummation an officer of the Company that such Rights Agreement does not apply to the Merger.; and
(f) The Company not more than 15% of the Company’s shareholders shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c)exercised dissenter’s rights.
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Captaris Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and the Merger Sub under this Agreement are to effect the Merger is subject to the satisfactionsatisfaction (or, at to the extent permitted under applicable law, waiver by Parent and the Merger Sub) on or before prior to the Closing, of each Closing Date of the following conditions:
(a) During Each of the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company CASH contained herein that are qualified as to materiality in this Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or CASH Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or CASH Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same force and effect as though made on at and as of such date, and each of the date (except those representations and warranties that address matters only as of a specified date, the Company that are not so qualified accuracy of which shall be true determined as of that specified date in all respects), and the contents of all Schedules shall be reasonably acceptable.
(b) CASH shall have performed in all material respectsrespects all agreements, obligations and covenants required to be performed by CASH under this Agreement at or prior to Closing.
(c) The Company approval of the Merger, in compliance with the CASH Charter Documents, and the DGCL, by CASH’s board of directors and holders of a majority of CASH Common Stock shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company been obtained at or prior to the ClosingClosing and no holders shall have exercised any appraisal rights.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation A certificate of the Merger, (b) could have good standing of CASH from its jurisdiction of incorporation dated a Material Adverse Effect on Parent’s ability date reasonably proximate to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the CompanyDate.
(e) On the Closing DateParent shall have received such other certificates, there shall instruments and documents as may reasonably be no effective Order issued requested by a court of competent jurisdiction restraining or prohibiting the consummation of the MergerParent.
(f) The Company CASH shall not have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c)filed for protection under any applicable bankruptcy laws nor has any 3rd party commenced such an action against CASH.
(g) The Company CASH shall have executed and delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed each of the shareholders listed on Schedule 4.8(i) shall have signed and delivered at the Closing this Agreement acknowledging their duties and restrictions pursuant to this AgreementSection 4.8.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(iliabilities aside from those listed on Schedule 5.1(l) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered satisfied prior to ParentClosing.
Appears in 1 contract
Sources: Merger Agreement (Real Brands, Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction or, at or before the Closingif permitted by applicable Law, of each waiver of the following further conditions:
(ai) During the period from the date Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
Effective Time; (bii) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified contained in this Agreement (disregarding for this purpose any qualifications with respect to materiality or Company Material Adverse Effect) shall be true and correct in all material respects., in each case as of the date hereof and at and as of the Closing Date as if made at and as of such time, it being understood and agreed by Parent and Merger Sub that this Section 7.02(a) shall be deemed to have been satisfied unless any failure of performance or failure to be so true and correct, individually or in the aggregate, would have a Company Material Adverse Effect; and (iii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect;
(b) Parent shall have received "cold comfort" letters of Deloitte & Touche LLP and dated the date on which the Registration Statement shall become effective and the Effective Time, respectively, and addressed to Parent, such "cold comfort" letters being in such form and substance as is reasonably customary for letters delivered by independent public accountants in connection with registration statements similar to the Registration Statement;
(c) The Company Parent shall have performed received the opinion of counsel to Parent, based upon representation letters and complied in all material respects with all covenantsstockholder certificates, agreements, obligations and conditions required by this Agreement to be performed dated on or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On about the Closing Date, there shall be no effective Order issued by a court substantially in the forms of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections Exhibits 7.02(a), (b) and (c).
(g) The to this Agreement, and such other facts, representations and assumptions concerning, among other things, the actions of the stockholders of the Company shall have delivered as counsel may reasonably deem relevant, to Parent the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code and that each of Parent, Merger Sub and the Company will be a certificateparty to the reorganization within the meaning of Section 368(b) of the Code, dated on the Closing Date, executed by a duly authorized Member, certifying as ;
(d) Parent shall have received from any person who may be deemed to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization have become an affiliate of the NoteCompany, and (iii) incumbency and signatures as reasonably determined by the Company, pursuant to Rule 145 under the Securities Act, after the date of the persons who have executed this Agreement and any other documentson or prior to the Effective Time, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, a signed agreement substantially in the opinion form of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentExhibit 6.11 hereto.
Appears in 1 contract
Sources: Merger Agreement (Unc Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each waiver (where permissible) of the following further conditions:
(a) During the period from the date Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.Effective Time;
(b) The the representations and warranties of the Company contained herein in this Agreement (i) that are qualified as to by materiality shall or Company Material Adverse Effect, shall, in each case, be true in all respects on and correct at and as of the Closing Date with the same force and effect Effective Time as though if made on at and as of such time (except to the extent expressly made at and as of another specific date, in which case at and each as of such specific date), and (ii) that are not qualified by materiality or Company Material Adverse Effect shall be true and correct at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made at and as of another specific date, in which case at and as of such specific date), unless the failure of such representations and warranties of the Company that are not so qualified shall to be true in all material respects.and correct would not have a Company Material Adverse Effect;
(c) The Company Parent shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required received a certificate signed by this Agreement to be performed or complied with by an executive officer of the Company at or prior attesting to the Closing.satisfaction of the conditions in subparagraphs (a) and (b) above;
(d) There the Company shall not be threatenedhave delivered to Parent certified copies of the resolutions duly adopted by the Special Committee and Board of Directors of the Company, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits as the case may be, authorizing the execution, delivery and performance of this Agreement and the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.;
(e) On the Closing Date, there no Company Material Adverse Effect shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.have occurred; and
(f) The Company and its Subsidiaries shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessaryhave, in the opinion aggregate, no less than $179 million of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentReadily Available Cash.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to consummate the Merger is subject to the satisfaction, at or before the prior to Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.Stock Option Redemption shall have been completed;
(b) The representations and warranties (i) each of the Specified Company contained herein that are Representations, to the extent not qualified as to materiality or “Company Material Adverse Effect,” shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such datematerial respects, and each of to the representations and warranties of the Company that are not extent so qualified shall be true in all respects, when made and as of immediately prior to the Effective Time as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, which need only to be true in all material respects.respects as of such specified date), (ii) the Other Company Representations, disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of immediately prior to the Effective Time as if made at and as of such time (other than any Other Company Representations that are made only as of a specified date, which need only to be true as of such specified date); provided that the Other Company Representations as modified in clause (ii) shall be deemed true at any time unless the individual or aggregate impact of the failure to be so true of the Other Company Representations could reasonably be expected to have a Company Material Adverse Effect; and (iii) Parent shall have received a certificate signed on behalf of the Company by a senior executive officer of the Company to the foregoing effect;
(c) The the Company shall have performed and complied in all material respects with all covenantsits obligations under the Agreement, agreementsand Parent shall have received a certificate signed on behalf of the Company by a senior executive officer of the Company to the foregoing effect; provided, however, that Parent and Merger Sub shall not be relieved of their obligations and conditions required by to consummate the Merger pursuant to this Agreement to be performed or complied with Section 7.02(c) solely as a result of a failure by the Company at or prior to perform its obligations under this Agreement that has been primarily and proximately caused by the Closing.actions of ▇▇▇▇ ▇. ▇▇▇▇▇ in his capacity as an executive officer of the Company;
(d) There Merger Sub shall have received gross proceeds of at least $15,000,000 on terms and conditions as set forth in the Debt Financing Letter or upon terms that are, in the reasonable judgment of Merger Sub, at least as favorable to Merger Sub as those set forth in the Debt Financing Letter;
(e) there shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting (i) seeking to restrain or looking toward an Order prohibit Parent’s ownership or operation (or that (aof its Affiliates) restrains of all or prohibits the consummation any material portion of the Mergerbusiness, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, (bii) could have a Material Adverse Effect seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Company Common Stock or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s shareholders, or (iii) seeking to require divestiture by, Parent, Merger Sub, or any of Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court other Affiliates of competent jurisdiction restraining or prohibiting the consummation of the Merger.any equity interests;
(f) The Company there shall have delivered not be in effect any Order that could reasonably be expected to Parent a certificateresult, dated the Closing Datedirectly or indirectly, executed by a duly authorized Member certifying the fulfillment in any of the conditions specified effects referred to in Sections 7.02(aclauses (i) through (iv) of Section 7.02(e), (b) and (c).; and
(g) The Company there shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall not have been obtained any fact, event, change, development or set of circumstances that are necessaryhas had, individually or in the opinion of Parent counselaggregate, in connection with (a) the execution and delivery by the a Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentMaterial Adverse Effect.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction or, at or before the Closingif permitted by applicable Legal Requirements, of each waiver of the following further conditions:
(a) During (i) the period from the date Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
Effective Time; (bii) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company contained in this Agreement which is qualified as to materiality shall be true and correct and each such representation and warranty that are is not so qualified shall be true and correct in all material respects., in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date; and (iii) Parent shall have received a certificate signed by an executive officer of the Company, respectively, to the foregoing effect;
(b) there shall not have been instituted or be pending any action or proceeding having a reasonable likelihood of success by or before any Governmental Authority or a court of competent jurisdiction, nor shall there be in effect any judgment, decree or order of any Governmental Authority or court of competent jurisdiction, in either case, seeking to make materially more costly the Merger, or seeking to obtain material damages in connection with the Merger, or seeking to prohibit or limit materially Parent at any time after the Effective Time from exercising all material rights and privileges pertaining to its ownership of the Surviving Corporation to the full extent permitted by applicable Legal Requirements or the ownership or operation by Parent or any of its subsidiaries of all or any portion of the business or assets of the Surviving Corporation, Parent or any of their subsidiaries, or seeking to compel the Surviving Corporation, Parent or any of their subsidiaries to dispose of or hold separate all or any portion of the business or assets of the Surviving Corporation, Parent or any of their subsidiaries, as a result of the Merger;
(c) The Company the documents providing for the Redemption and the exercise of the options described in Section 2.01 shall have performed be reasonably satisfactory to Parent and complied its counsel and shall in all material respects with all covenants, agreements, obligations any event include an acknowledgement of the deduction and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.withholding described in Section 2.07;
(d) There the Parent shall not be threatenedhave received an opinion of Reinman, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the MergerMatheson, (b) could have a Material Adverse Effect on Parent’s ability ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PA, counsel to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company., covering such matters as are listed in Exhibit 7.02(d);
(e) On the Closing DateParent shall have received an opinion of ▇▇▇▇, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., counsel to the consummation of the Merger.ESOP, covering such matters as are listed in Exhibit 7.02(e);
(f) The Company Parent and each of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Day, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Shverak, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).entered into mutually acceptable employment agreements; and
(g) The Company shall have delivered furnished to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, certification in the form required by Treasury Regulation Section 1.1445-2(c)(3) that the capital stock of the Company is not a "United States real property interest"; and (ii) resolutions with respect as agent for the Company, a form of notice to the Merger adopted by its Members attached thereto, and (iiiInternal Revenue Service in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2) resolutions along with respect written authorization for Parent to deliver such notice form to the authorization Internal Revenue Service on behalf of the Note, and (iii) incumbency and signatures of Company upon the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementClosing.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Essex Corporation)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are to consummate the Closing is subject to the satisfactionsatisfaction (or, at or before to the Closingextent permitted by Applicable Law, waiver by Parent, on behalf of each itself and Merger Sub) of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied with in all material respects with all covenants, agreements, of its obligations and conditions agreements hereunder required by this Agreement to be performed or complied with by the Company at or prior to the Closing.;
(b) The representations and warranties of the Company contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall be true and correct (i) in all material respects as of the date of this Agreement (except where any such representations and warranties expressly relate to a specific date prior to the date of this Agreement, then such representations and warranties will be true and correct in all material respects as of such date), and (ii) as of the Closing (or, if such representations and warranties expressly relate to a specific date between signing and the Closing, then as of such date), except, in the case of this clause (ii) where the failure of such representations and warranties of the Company to be accurate at the Closing (or such other date), when taken as a whole, would not reasonably be expected to result in a Company Material Adverse Effect;
(c) Since the date of this Agreement, there shall not have occurred a Company Material Adverse Effect;
(d) There ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall not be threatened, instituted or pending any Proceeding have received a certificate duly executed by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation officer of the MergerCompany, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after dated as of the Closing or Date, certifying as to the satisfaction of the conditions set forth in Section 9.02(a), 9.02(b) and 9.02(c) (c) could have a Material Adverse Effect on the Company.“Company Certificate”);
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.Reserved;
(f) The Equityholder Representative shall have delivered to Parent a duly executed counterpart to the Escrow Agreement, in a form to be agreed between the Parent, the Equityholder Representative and the Escrow Agent (the “Escrow Agreement”);
(g) Reserved;
(h) The Company shall have delivered to Parent, the Estimate Statement and the Allocation Schedule pursuant to Section 2.08(a);
(i) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment written resignations of each of the conditions specified in Sections 7.02(a)directors and officers of each of the Acquired Companies, (b) and (c).which resignations shall be effective as of the Effective Time;
(gj) The Company shall have delivered to Parent and Merger Sub shall have received from an officer of the Company a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to certificate having attached thereto (i) its Organizational Documentsthe Certificate of Incorporation as in effect immediately prior to the Effective Time, (ii) the Bylaws of the Company as in effect immediately prior to the Effective Time, (iii) the Governing Documents of each other Acquired Company, (iv) resolutions approved by the Company’s Board of Directors authorizing the transactions contemplated hereby, including the treatment of Company Stock Options, (v) the executed Written Consent by at least 70% of (1) the issued and outstanding shares of Company Stock (on an as-converted basis with respect to any shares of Company Preferred Stock held by such holder), voting together as a single class, (2) the Merger adopted by its Members attached theretoCompany Preferred Stock (on an as-converted basis), voting together as a single class, and (iii3) resolutions with respect to the authorization of Series B Preferred Stock (on an as-converted basis) (the Note“Required Stockholders”), and (iiivi) incumbency certificates of good standing (including tax good standing) issued by the Delaware Secretary of State and signatures for each other state where the Company is qualified to do business, in each case dated as of the persons who have executed this Agreement and any other documents, certificates and agreements a date no more than two (2) Business Days prior to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.Date;
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following further conditions:
: (a) During the period from the date Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing DateEffective Time, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The the representations and warranties of the Company contained herein in this Agreement (i) that are qualified as to by materiality or Company Material Adverse Effect shall be true in all respects on and correct at and as of the Closing Date with the same force and effect Effective Time as though if made on at and as of such time (except to the extent expressly made at and as of another specific date, in which case at and each as of the representations such specific date), and warranties of the Company (ii) that are not so qualified by materiality or Company Material Adverse Effect shall be true in all material respects.
(c) The Company shall have performed and complied correct in all material respects with all covenantsat and as of the Effective Time as if made at and as of such time (except to the extent expressly made at and as of another specific date, agreementsin which case at and as of such specific date), obligations and conditions required (c) Parent shall have received a certificate signed by this Agreement to be performed or complied with by an executive officer of the Company at or prior to the Closing.
foregoing effect, (d) There Parent or Merger Sub shall not be threatenedhave received the proceeds from the Debt Financing, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of alternative financing sufficient to consummate the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court Holders of competent jurisdiction restraining or prohibiting the consummation not more than 10% of the Merger.
outstanding shares of Company Stock shall have exercised dissenters’ rights in accordance with Minnesota Law (excluding any holders who have exercised but have failed to properly perfect, or have otherwise lost, such rights prior to the Effective Time in accordance with Minnesota Law), (f) The the Company shall have delivered to Parent certified copies of (i) the resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Merger and (ii) the resolutions duly adopted by the Company’s shareholders adopting this Agreement, (g) the Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment certificate of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members effect that the Company is not a U.S. real property holding company substantially in the form attached theretohereto as Exhibit B hereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the no Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities Material Adverse Effect shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution occurred and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentbe continuing.
Appears in 1 contract
Sources: Merger Agreement (Sitel Corp)
Conditions to the Obligations of Parent and Merger Sub. The ------------------------------------------------------ respective obligations of Parent and Merger Sub under to consummate the transactions contemplated by this Agreement are subject to the satisfaction, fulfillment at or before prior to the Closing, Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be have been true in all respects when made and on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the Closing Date (except for representations and warranties made as of a specified date, which shall speak only as of the specified date), except where the failure to be true, individually or in the aggregate, has not had or is not reasonably expected to have a Material Adverse Effect on the Company that are not so qualified shall be true in all material respectsand its subsidiaries taken as a whole.
(cb) The Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions contained herein required by this Agreement to be performed or complied with by the Company at or it prior to or at the time of the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Datedate of the Closing, executed signed by a duly authorized Member the President or any Vice President of the Company (but without personal liability thereto), certifying as to the fulfillment of the conditions specified in Sections 7.02(a7.2(a) and 7.2(b).
(d) The Company shall have received and delivered to Parent a letter from Ernst & Young LLP, auditors for the Company, dated as of the Closing Date, stating that the Company qualifies as a combining company in accordance with the provisions of APB 16 and the applicable SEC rules and regulations. Parent shall have received a letter from Ernst & Young LLP, auditors for Parent, dated as of the Closing Date, stating that accounting of the Merger as a "pooling of interests" under APB 16 and the applicable SEC rules and regulations is appropriate if the Merger is consummated as contemplated by this Agreement. Notwithstanding the foregoing, the satisfaction of this Section 7.2(d) shall not be a condition to the obligations of a party to effect the Merger if the failure to satisfy this condition results from any action taken or agreed to be taken by or on behalf of Parent.
(e) Parent shall have received an opinion of its tax counsel, Weil, Gotshal & ▇▇▇▇▇▇ LLP, dated the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; and (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. The issuance of such opinion shall be conditioned on the receipt by such tax counsel of representation letters from each of the Parent, Merger Sub and the Company, substantially in the forms attached hereto as Exhibits D and E. Each such ---------- - representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect.
(f) All authorizations, consents or approvals of a Governmental Entity (other than those specified in Section 7.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall have been made or obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or an effect on Parent and its subsidiaries that, were such effect applied to the Company and its subsidiaries, is reasonably expected to have a Material Adverse Effect on the Company), except for such authorizations, consents or approvals, the failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (b) or an effect on Parent and (cits subsidiaries that, were such effect applied to the Company and its subsidiaries, is reasonably expected to have a Material Adverse Effect on the Company).
(g) The Not later than 45 days prior to the date of the Company Stockholder Meeting, Parent shall have delivered to Parent and Merger Sub received from the Company's "affiliates" a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Company Affiliate Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, substantially in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.form attached as Exhibit B. ---------
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The ------------------------------------------------------ obligations of Parent and Merger Sub under this Agreement to effect the Merger are also subject to the satisfaction, fulfillment at or before prior to the Closing, of each Effective Time of the following conditionsconditions unless waived in writing by Parent and Merger Sub:
(a) During this Agreement, the period from Merger and the date consummation of the transactions contemplated in this Agreement to shall have been approved and adopted by the Closing Date, there shall not have occurred a Material Adverse Effect on requisite vote of the stockholders of the Company or its business.required by Colorado Law;
(b) The the Company shall have performed each obligation and agreement and complied with each covenant to be performed and complied with by it hereunder at or prior to the Effective Time, except for such failures to comply which would not constitute a Company Material Adverse Effect and which would not otherwise materially adversely affect the consummation of the transactions contemplated hereby, and Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to such effect;
(c) the representations and warranties of the Company contained herein set forth in this Agreement that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such datecorrect, and each of the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects.
(c) The Company , in each case as of the date of this Agreement and as of the Effective Date, as though made on and as of the Effective Date, and Parent shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company at or prior to such effect with respect to the Closing.Company's representations and warranties;
(d) There the Company shall not be threatenedhave taken all actions, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order if any, that (a) restrains or prohibits the are necessary to assure that upon consummation of the Merger all of the options, warrants, and other agreements to acquire any shares of Company Common Stock (excluding agreements with Parent) outstanding immediately prior to the Merger (and not exercised prior to the Merger) shall, effective upon the Merger, (b) could have a Material Adverse Effect on Parent’s ability been cancelled and shall have provided evidence thereof to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.Parent satisfactory to it;
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub all necessary consents, waivers, authorizations and approvals, such that neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in the acceleration, termination, modification or cancellation of, or the creation in any party of the right to accelerate, terminate, modify or cancel, any indenture, contract, lease, sublease, loan, agreement, note or other similar obligation or liability to which the Company or any of the Company Subsidiaries is a certificateparty or is bound or to which any of their respective assets are subject, (ii) conflict with, violate or result in a breach of any provision of the charter documents or bylaws of the Company or any of the Company Subsidiaries, (iii) conflict with or violate any law, rule, regulation, ordinance, order, writ, injunction or decree applicable to the Company or any of the Company Subsidiaries or by which any of their respective properties or assets is bound or affected or (iv) conflict with or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the creation of any lien, charge or encumbrance on any of the properties or assets of the Company or any of the Company Subsidiaries pursuant to any of the terms, conditions or provisions of any indenture, contract, lease, sublease, loan, agreement, note, permit, license, franchise, agreement or other instrument, obligation or liability to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries or any of their assets is bound or affected, unless the failure to obtain such consents, waivers, authorizations and approvals would not (x) prevent the consummation of the transactions contemplated hereby, or (y) be reasonably likely to have a Company Material Adverse Effect;
(f) the Company shall have delivered to each of Parent and Merger Sub a certificate of the Secretary of the Company dated the Closing Effective Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documentsa copy (to be attached to such certificate) of the Articles of Incorporation of the Company, together with all amendments thereto, and a copy of the By-laws of the Company and further certifying that no action has been taken to amend, modify or repeal such documents, the same being in full force and effect in such form on the Effective Date, (ii) a copy (to be attached to such certificate) of the resolutions with respect to of the Merger adopted by its Members attached theretoboard of directors and stockholders of the Company authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and further certifying that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate and (iii) resolutions with respect to the authorization incumbency and signature of the Note, and (iii) incumbency and signatures officers of the persons who have executed Company executing this Agreement on behalf of the Company and any certificate, agreement or other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company pursuant hereto, together with evidence of the incumbency of such Secretary;
(g) the Company shall have delivered to each of Parent and Merger Sub at the Closing shall be reasonably satisfactory favorable opinion of counsel to the Company, dated the Effective Date, in form and substance reasonably satisfactory to counsel to Parent and Merger Sub, to the following effect: (i) the organization, existence, and good standing of the Company and the Company Subsidiaries are as stated in this Agreement; (ii) the Company has full power and authority to execute and deliver this Agreement and the Company has full power and authority to perform this Agreement; (iii) this Agreement has been duly authorized by all requisite action of the Board of Directors and shareholders of the Company, and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting creditors' rights generally and to general equitable principles; (iv) the execution and performance by the Company of this Agreement will not violate the Articles of Incorporation or By-laws of the Company and will not violate, result in a breach of or constitute a default under, any lease, mortgage, agreement, instrument, judgment, order or decree known to such counsel to which the Company or any Company Subsidiary are parties or to which they or any of their properties may be subject; (v) the Articles of Merger have been duly executed by the Company and, upon filing, will be sufficient to lawfully effect the Merger; (vi) the Mining Venture Agreement is in full force and effect and is valid, binding and enforceable by the Company, except as disclosed in Section 2.16(a) of the Company --------------- Disclosure Letter; (vii) the Company owns and has good title to the Project, the Properties and all of the assets and properties of the Company referenced in Section 2.17 of this Agreement, except as set ------------ forth in Section 2.17 of the Company Disclosure Letter; and (viii) to ------------ the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body not previously obtained is required for the consummation of the Agreement.
(h) since the date of this Agreement, there shall not have occurred any material adverse change in the condition (financial or otherwise), business, operations, prospects or assets of the Company and the Company Subsidiaries considered as one enterprise;
(i) All Consents Parent shall have completed, and in its sole discretion be satisfied with the results of, its due diligence investigation of the Company;
(j) except for the filing of the Articles of Merger with the Secretary of State of the State of Colorado, all Third Parties waivers, consents, approvals and Governmental Authorities actions or non-actions of any governmental authority, commission, board or other regulatory body required to consummate the transactions contemplated by this Agreement shall have been obtained and shall not have been reversed, stayed, enjoined, set aside, annulled or suspended;
(k) there shall not be threatened or pending any suit, action or proceeding by any Governmental Entity or any other person, or before any court or governmental authority, agency or tribunal, domestic or foreign, in each case that has a reasonable likelihood of success, (i) challenging the acquisition by Parent or Merger Sub of any shares of Company Common Stock, seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement, or seeking to obtain from the Company, Parent or Merger Sub any damages that are necessarymaterial in relation to the Company and the Company Subsidiaries taken as a whole, in (ii) seeking to prohibit or limit the opinion ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, or to compel the Company, Parent or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of Parent counselor Merger Sub to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock, including, without limitation, the right to vote the Company Common Stock purchased by it on all matters properly presented to the stockholders of the Company, (iv) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in connection with (a) any material respect the execution and delivery by business or operations of the Company or the Company Subsidiaries or (bv) which otherwise is reasonably likely to have a Company Material Adverse Effect;
(l) the consummation by Company's Board of Directors shall have approved the Globex Loan Agreement, and the Company shall not be in default under that agreement;
(m) all funds which the Company borrows are used for the purpose required by any loan agreement or related documentation associated with such borrowing;
(n) U.S. Gold shall have duly executed the Stock Option Agreement, and all related agreements and documents and such agreements are in full force and effect and U.S. Gold shall not be in default thereof;
(o) Royalstar shall have duly executed a Stock Purchase Agreement providing for the purchase by Parent of 4,419,110 shares of Company Common Stock at $0.80 per share, all related agreements and documents and such agreements are in full force and effect, Royalstar shall not be in default thereof, and Parent shall have acquired such shares prior to or substantially contemporaneous with the Merger;
(p) The Company shall have caused any of its employees, officers, directors or any Company Subsidiary which owns any interest in any real property, or any mineral interest or estate therein, within one aerial mile of the MergerLands or the Project, to convey such interest, without any additional compensation to such person, to the Company by a document of transfer satisfactory to Parent and copies of all such Consents its counsel;
(q) the Company and TSVLP shall have been executed and delivered a document, satisfactory to Parent, amending the terms and provisions of the Mining Venture Agreement; and
(r) Parent shall have successfully raised financing of no less than $10,000,000.
Appears in 1 contract
Sources: Merger Agreement (Globex Mining Enterprises Inc /Fi)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Transactions are subject to the satisfaction, at satisfaction or waiver of the following conditions on or before the Closing, of each of the following conditionsClosing Date:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall in Article 3 will be true in all respects on and correct at and as of the time of the Closing as if made on the Closing Date with and the same force Closing Date were substituted for the date of this Agreement throughout such representations and effect warranties, except (i) to the extent that the failure of such representations and warranties to be true and correct has not caused a Material Adverse Effect, and (ii) for those representations and warranties that address matters as though made on of any other particular date (in which case such representations and warranties shall have been true and correct as of such particular date, except to the extent that the failure of such representations and each warranties to have been true and correct as of such particular date has not caused a Material Adverse Effect), it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be disregarded (except for purposes of the representations set forth in Sections 3.12, 3.16(g) and warranties of the Company that are not so qualified shall be true in all material respects.3.16(1));
(cb) The the Company shall have performed and complied in all material respects with all covenants, agreements, obligations of the covenants and conditions agreements required by this Agreement to be performed or complied with by the Company it under this Agreement at or prior to the Closing.;
(c) the Company shall have obtained the Requisite Stockholder Approval;
(d) There the applicable waiting periods, if any, under the HSR Act shall not have expired or been terminated;
(e) no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court or agency of competent jurisdiction or other Law shall be threatened, instituted pending, shall have been issued or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) shall be in effect which prohibits, restrains or prohibits renders illegal the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability Transactions or would cause the Transactions to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.rescinded;
(f) The the Stockholders’ Representative and the Paying Agent shall have executed and delivered the Paying Agent Agreement;
(g) the Company shall have delivered the Payout Spreadsheet to Parent and the Paying Agent;
(h) the Stockholders’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(i) the Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying stating that the fulfillment of the conditions preconditions specified in Sections 7.02(a8.0l(a), (b8.01(b), and 8.01(1) as they relate to the Company and (c).its Subsidiaries, have been satisfied;
(gj) The the number of Dissenting Shares shall not exceed 2.0% of the sum of Total Outstanding Series A Preferred Shares and total outstanding shares of Company Common Stock as of the date hereof;
(k) the Company shall have delivered to Parent and Merger Sub a certificate, dated obtained the Closing Date, executed by a duly authorized Member, certifying as to (ithird-party consents set forth in Section 8.01(k) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and Disclosure Schedule;
(iii1) incumbency and signatures since the date of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities , no event shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.occurred which has had a Material Adverse Effect;
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company BBT contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date (except for the representations and warranties made as of a specific date which shall be true in all material respects as of such date) with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company BBT that are not so qualified shall be true in all material respects.
(cb) The Company BBT shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company BBT at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding suit, action, investigation, inquiry or other proceeding by or before any court or Governmental Authority governmental or other regulatory or administrative agency or commission requesting or looking toward an Order order, judgment or decree that (a) restrains or prohibits the consummation of the Mergertransactions contemplated hereby, (b) could reasonably be expected to have a Material Adverse Effect material adverse effect on Parent’s 's ability to exercise control over or manage the Company BBT after the Closing or (c) could reasonably be expected to have a Material Adverse Effect material adverse effect on the CompanyBusiness or BBT.
(ed) On the Closing Date, there shall be no effective Order injunction, writ, preliminary restraining order or other order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Mergertransactions contemplated hereby.
(fe) The Company BBT shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment Secretary of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized MemberBBT, certifying as to (ia) its Organizational DocumentsBBT's certificate of incorporation, (iib) BBT's by-laws, (c) resolutions with respect to the Merger transactions contemplated by this Agreement adopted by its Members BBT's board of directors and shareholders and attached theretoto such certificate, and (iii) resolutions with respect to the authorization of the Note, and (iiid) incumbency and signatures of the persons who have executed this Agreement Agreement, the Related Agreements and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementAgreement or any of the Related Agreements on behalf of BBT.
(f) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into an employment agreement with the Surviving Corporation (collectively, the "EMPLOYMENT AGREEMENTS"), substantially in the form of EXHIBIT B.
(g) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into a lock-up agreement with Parent (collectively, the "LOCK-UP AGREEMENTS"), substantially in the form of EXHIBIT C.
(h) All documents to be delivered BBT shall have furnished Parent with copies of the Ownership and Nondisclosure Agreements signed by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Subeach employee, officer, consultant or contractor of BBT identified on SCHEDULE 4.16(G).
(i) All Consents of all Third Parties and Governmental Authorities Parent shall have been obtained that are necessary, in received stock certificates representing the opinion of Parent counsel, in connection with Shares.
(aj) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents No material adverse change affecting BBT shall have been delivered to Parentoccurred.
Appears in 1 contract
Sources: Merger Agreement (Planet Zanett Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following conditions:further conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof):
(a) During (i) the period from the date Company shall have performed all of this Agreement its material obligations hereunder required to be performed by it at or prior to the Closing Date, there Effective Time; and (ii) Parent shall not have occurred received a Material Adverse Effect on certificate signed by an executive officer of the Company or its business.to the foregoing effect;
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and (i) each of the representations and warranties of the Company that are not so contained in this Agreement shall have been true and correct in all material respects at the time originally made (as qualified by the Company Disclosure Schedule), or an earlier date if such representation or warranty refers expressly to an earlier date (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein), and shall be true and correct in all material respects.respects (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein) as of the Effective Time, with the same force and effect as if such representations and warranties had been made at and as of the Effective Time, or an earlier date if such representation or warranty refers expressly to an earlier date, except with respect to the representations and warranties deemed to be made as of the Closing Date, where any failures to be true and correct, individually or in the aggregate, could not reasonably be expected to constitute a Material Adverse Effect with respect to the Company and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect;
(c) The Company each of the individuals identified on Schedule 7.2 hereto shall have performed executed and complied delivered a non-competition agreement with Parent in all material respects with all covenants, agreements, obligations form and conditions required by this Agreement substance satisfactory to be performed or complied with by the Company at or prior to the Closing.Parent and such person;
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a no Material Adverse Effect on Parent’s ability with respect to exercise control over or manage the Company after shall have occurred or been discovered by Parent since the Closing or (c) could have a Material Adverse Effect on the Company.Agreement Date;
(e) On no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property);
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ will have issued a legal opinion in the form attached hereto as Exhibit D;
(g) the Company shall have delivered a properly executed statement, dated as of the Closing Date, there shall be no effective Order issued by in a court form reasonably acceptable to Parent conforming to the requirements of competent jurisdiction restraining or prohibiting the consummation of the Merger.Treasury Regulation Section 1.1445-2(c)(3);
(fh) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub the Capitalization and Closing Payment Amount Certificate;
(i) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and other instruments or obligations to which it is a certificate, dated party;
(j) the Company shall have delivered to Parent a certificate at any one time following the date hereof but prior to the Closing Date, executed by a duly authorized Member, certifying setting forth the following information as to each share of the Company’s stock (as defined in Treas. Reg. § 1.382-2(a)(3)), as of the date of such certificate (which date may be any day after the date of this Agreement and prior to the Effective Time): (i) its Organizational Documentsthe date of issuance, (ii) resolutions the holder at issuance, (iii) the issue price and (if different) fair market value, (iv) the date(s) of any transfer(s), (v) the fair market value at the time of transfer, (vi) any information as to the holder of that share from time to time that is described in Treas. Reg. §§ 1.382-2T(h)(6) and/or 1.382-2T(k) and is actually known to the Company, and (vii) a summary of any written materials indicative of, or other information or estimates as to, the fair market value of that share from time to time (including, e.g., the exercise price of any incentive stock options granted at any time at or following the issuance date of that share to acquire shares of the same class of stock);
(k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options, which shall be converted into the right to receive a portion of the Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated, and all outstanding convertible notes shall have been cancelled or converted into capital stock of the Company; and
(l) holders of no more than five percent (5%) of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have elected to, or continue to have contingent rights to, exercise dissenters’, appraisal or similar rights under Delaware Law or California Law, if any, with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreementsuch shares.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction (or waiver by Parent and/or Merger Sub, as applicable) at or before prior to the Closing, of each Effective Time of the following further conditions; PROVIDED that notwithstanding the foregoing or anything in this Agreement to the contrary, after January 31, 2007, neither Section 7.02(a) nor 7.02(c) shall be a condition to Parent and Merger Sub's obligations to consummate the Merger:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this agreement shall be true in all respects on and correct when made and at and as of the Closing Date with the same force and effect as though if made on at and as of the Closing (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such datedate or with respect to such period), except where the failure of such representations or warranties to be true and each of correct (without giving effect to any materiality qualifiers set forth in such representations and warranties) does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; PROVIDED, HOWEVER, that notwithstanding the foregoing, the representations and warranties of the Company that are not so qualified set forth in Section 4.03 shall be true and correct in all material respects.respects and the representations and warranties set forth in the second sentence of Section 4.08 shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such date or with respect to such period);
(cb) The the Company shall have performed and complied in all material respects with all covenants, agreements, its obligations and conditions hereunder required by this Agreement to be performed or complied with by the Company it at or prior to the Closing.Effective Time;
(c) since December 31, 2005, there shall not have been any change, event, circumstance or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(d) There the Company shall have obtained the consents and Requisite Regulatory Approvals listed in SCHEDULE 4.06, other than such consents and approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; PROVIDED that the failure to obtain any consents or approvals due to the identity of Parent or its Affiliates shall not be threatened, instituted taken into account in determining whether or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (anot the condition in this Section 7.02(d) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.is satisfied; and
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, certificate (dated as of the Closing Date), executed signed by a duly authorized Member certifying an officer or officers with authority to bind the fulfillment of Company as to compliance with the conditions specified set forth in Sections 7.02(aparagraphs (a) (if applicable), (b) and (c).
(gd) The Company of this Section 7.02. For the avoidance of doubt, nothing in this Agreement shall be construed to require or otherwise impose as a condition to Parent or Merger Sub's obligation to consummate the Merger that Parent shall have delivered received or otherwise has available financing in order to Parent and Merger Sub a certificatesatisfy its payment obligations hereunder, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions including with respect to payment of the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementConsideration.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and to consummate the Merger Sub under this Agreement are subject to the satisfaction, at satisfaction or before the Closing, of each waiver of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each Each of the representations and warranties of the Company that are not so qualified contained in this Agreement shall be true true, complete and correct in all material respectsrespects both when made and on and as of the Effective Time as if made at and as of the Effective Time (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct as of such certain date) and Parent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Company to such effect.
(b) Parent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Company setting forth the number of shares of Parent Common Stock that each stockholder of Company is to receive upon consummation of the Merger and the number of shares of Parent Common Stock issuable upon the exercise of options to purchase Company Common Stock.
(c) The Company shall have performed and or complied in all material respects with all covenants, agreements, obligations and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the ClosingEffective Time and Parent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Company to that effect.
(d) There Parent shall not be threatenedhave raised sufficient funds in order to meet its $14 million cash obligation (U.S. Dollars), instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits plus the consummation amount of the Merger, (b) could have a Material Adverse Effect on Parent’s ability aggregate capital paid in to exercise control over or manage the Company upon the exercise of Company Stock Options and Warrants from and after the Closing or (c) could have a Material Adverse Effect on the Companydate hereof until Closing, to Company shareholders at Closing.
(e) On There shall have been no Company Material Adverse Effect since the Closing Date, there shall be no effective Order issued by a court date of competent jurisdiction restraining or prohibiting the consummation of the Mergerthis Agreement.
(f) The Company No actions by any Governmental Entity or any other Person shall have delivered been instituted for the purpose of enjoining or preventing, or which question the validity or legality of, the transactions contemplated hereby and which would reasonably be expected to materially damage Merger Sub or Parent a certificate, dated or materially adversely affect the Closing Date, executed by a duly authorized Member certifying the fulfillment value of the conditions specified in Sections 7.02(a)Company Common Stock or its assets, (b) or the business or operations of the Company or Parent's ability to own and (c)operate the assets, business or operations of the Company if the transactions contemplated hereby are consummated.
(g) The Company shall have delivered to Parent All consents, approvals and Merger Sub a certificatelicenses of any Governmental Entity or any third party (including, dated the Closing Datewithout limitation, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization any consent listed on Schedule 4.5 of the NoteCompany Disclosure Schedule) required in connection with the execution, delivery and (iii) incumbency and signatures performance of the persons who have executed this Agreement and any other documentsfor the Surviving Corporation to conduct the business of the Company in substantially the manner now conducted, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreementshall have been obtained.
(h) All documents to be delivered by Dissenting Shares shall constitute not more than ten percent (10%) of the shares of the Company Common Stock outstanding immediately prior to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger SubEffective Time.
(i) All Consents of all Third Parties and Governmental Authorities Parent shall have been obtained that are necessaryreceived shareholder agreements from all holders of 5,000 or more shares of Company Common Stock, as set forth in Annex A hereto, as applicable to their individual status, not to sell, transfer or otherwise dispose of their Parent stock for a period of six (6) months after the Closing in the opinion case of non-employees and twelve (12) months in the case of employees. Notwithstanding such shareholder agreements, Parent counsel, may in connection with (a) certain limited circumstances allow sales of its stock prior to the execution and delivery by the Company or (b) the consummation by the Company expiration of the Mergeraforesaid lockup periods, and copies but there is no requirement that it do so. The holders of all 5,000 or more shares of Company Common Stock shall also agree after the expiration of the lockup agreement not to dispose of their Parent stock other than through a broker specified by Parent or after full consultation with such Consents shall have been delivered to Parentbroker.
Appears in 1 contract
Sources: Merger Agreement (Sopheon PLC)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following conditions:further conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof):
(a) During (i) the period from the date Company shall have performed all of this Agreement its material obligations hereunder required to be performed by it at or prior to the Closing Date, there Effective Time; and (ii) Parent shall not have occurred received a Material Adverse Effect on certificate signed by an executive officer of the Company or its business.to the foregoing effect;
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and (i) each of the representations and warranties of the Company that are not so contained in this Agreement shall have been true and correct in all material respects at the time originally made (as qualified by the Company Disclosure Schedule) and shall be true in all material respects.and correct as of the Effective Time (as qualified by the Updated Company Disclosure Schedule delivered by the Company most recently prior to the delivery of the Merger Election Notice by Parent); and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect;
(c) The each of the officers or employees of the Company responsible for oversight of the (i) research and development, (ii) operations, (iii) clinical, and (iv) general management functions of the Company shall have performed executed and complied delivered non-competition agreements with Parent in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.form attached hereto as Exhibit F;
(d) There except in the case of such person’s death or permanent disability, the persons identified by Parent at the time of delivery of a Merger Election Notice shall not be threatened, instituted have executed and delivered an employment agreement or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability consulting agreement with Parent in form and substance satisfactory to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.Parent and such person;
(e) On no Material Adverse Effect with respect to the Company’s business shall have occurred or been discovered by Parent since the date of delivery of the Merger Election Notice;
(f) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property);
(g) Heller, Ehrman, White & ▇▇▇▇▇▇▇▇▇ LLP or other legal counsel to the Company approved by Parent in its sole discretion will have issued a legal opinion in the form attached hereto as Exhibit G;
(h) the Company shall have delivered a properly executed statement, dated as of the Closing Date, there shall be no effective Order issued by in a court form reasonably acceptable to Parent conforming to the requirements of competent jurisdiction restraining or prohibiting the consummation of the Merger.Treasury Regulations Section 1.1445-2(c)(3);
(fi) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificatecertificate that (x) incorporates by reference the representations and warranties set forth in Section 3.2 and sets forth the information required to be set forth on Section 3.2 of the Company Disclosure Schedule as of the Effective Time, dated (y) sets forth a description of all Stockholder Debt to be outstanding immediately prior to the Effective Time, including the current holder thereof and the maximum amount required to discharge such Stockholder Debt in full (including any accrued interest, prepayment fees or costs, and any increases or multiples of the principal amount thereof), and (y) sets forth a description of all Merger-Triggered Fees, including the persons to whom they are payable, and the respective maximum amounts thereof (the “Capitalization and Fee Certificate”), which Capitalization and Fee Certificate shall be deemed to be a representation and warranty of the Company hereunder;
(j) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and other instruments or obligations to which it is a party, other than consents or approvals which, if not obtained, would not have a Parent Impairment either prior to or following the Closing;
(k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated, and, except for the Stockholder Debt set forth on the Capitalization and Fee Certificate which shall be paid by Parent at the Closing Datein accordance with Section 1.5(a), executed all outstanding convertible notes shall have been cancelled without repayment or converted into capital stock of the Company;
(l) if requested by Parent, the Company shall have held a duly authorized MemberStockholders Meeting and the Company Stockholders shall have approved the entrance by the Company into this Agreement and the consummation of the transactions contemplated hereby, certifying including the Merger; and
(m) holders of no more than 5.0% of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have elected to, or continue to (i) its Organizational Documentshave contingent rights to, (ii) resolutions exercise dissenters’, appraisal or similar rights under California Law with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreementsuch shares.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each waiver of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each Each of the representations and warranties of the Company that are not so qualified contained in this Agreement shall be true true, complete and correct in all material respects (other than representations and warranties subject to "materiality" or "material adverse effect" qualifiers, which shall be true, complete and correct in all respects.) both when made and on and as of the Effective Time as if made at and as of the Effective Time (other than representations and warranties which address matters only as of a certain date which shall be so true, complete and correct as of such certain date);
(cb) The Company shall have performed and or complied in all material respects with all covenants, agreements, obligations and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.Effective Time;
(c) Parent shall have received a legal opinion from Hill & ▇▇▇▇▇▇, P.C., counsel to the Company, substantially in the form of ANNEX B hereto;
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a been no Company Material Adverse Effect on Parent’s ability to exercise control over or manage since the Company after the Closing or (c) could have a Material Adverse Effect on the Company.date of this Agreement;
(e) On All consents of third parties required pursuant to the Closing Date, there shall be no effective Order issued by terms of any Material Contract as a court of competent jurisdiction restraining or prohibiting the consummation result of the Merger.Merger shall have been obtained;
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have accepted employment with Parent and shall have entered into noncompetition agreements substantially in the forms attached hereto as ANNEX C;
(g) No holders of Company Stock as of the Effective Date shall have perfected dissenting rights in accordance with the DGCL;
(h) Holders of the requisite number of shares of (i) Company Common Stock and (ii) Company Preferred Stock shall have approved this Agreement and the transactions contemplated hereby;
(i) Each Founder shall have entered into a founder lockup agreement substantially in the form attached hereto as Annex D;
(j) Each holder of options under the Company Stock Plan being assumed by Parent shall have entered into an optionholder lockup agreement, substantially in the form attached hereto as Annex E. For purposes of clarification, any warrants issued by the Company shall not be deemed to be options issued under the Company Stock Plan;
(k) The Company shall have provided Parent with documentation sufficient to ensure that Parent shall receive credit from Media Metrix for all visits to all websites owned by the Company during the month of March and thereafter, a form of which is attached hereto as Annex F;
(l) Each Stockholder shall have delivered to Parent a certificatestockholder representation letter substantially in the form attached hereto as Annex G;
(m) Prior to the Effective Time, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment all outstanding shares of Company Preferred Stock shall have been cancelled and converted into shares of Company Common Stock and all warrants of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent been exercised, cancelled and Merger Sub a certificateconverted into shares of Company Common stock;
(n) Parent, dated the Closing DateCompany, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, Escrow Agent and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who each Founder shall have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at a Founders Escrow Agreement and Founders Agreement Amendment substantially in the Closing pursuant to this Agreement.form attached hereto as Annex H;
(ho) All documents to be delivered by of the directors of the Company to Parent as of the date hereof, except for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Merger Sub at the Closing ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, shall be reasonably satisfactory in form and substance to Parent and Merger Sub.have resigned as directors; and
(ip) All Consents Each of all Third Parties and Governmental Authorities the Stockholder Party Agreements shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery terminated by the Company or (b) the consummation by the Company all of the Merger, and copies of all such Consents shall have been delivered to Parentparties thereto.
Appears in 1 contract
Sources: Merger Agreement (About Com Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction (or, at or before to the Closingextent permitted by Applicable Law, of each waiver by Parent) of the following further conditions:
(a) During (i) each of the period Company and SpinCo shall have performed in all material respects all of its obligations hereunder required to be performed by it prior to the Effective Time, (ii) (A) the representations and warranties contained in Section 4.01(a), Section 4.02, Section 4.05 and Section 4.21 (disregarding all materiality, Tiger Material Adverse Effect and similar qualifications contained therein) shall be true in all material respects at and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time) and (B) the other representations and warranties in Article 4 (disregarding all materiality, Tiger Material Adverse Effect and similar qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of this clause (B) only, only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Tiger Material Adverse Effect; and (iii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect;
(b) Parent shall have received (i) the Parent Merger Tax Opinion from Parent Tax Counsel or an Alternative Tax Counsel, which opinion shall not have been withdrawn or modified in any material respect, and (ii) copies of the Company RMT Tax Opinions;
(c) The Company and SpinCo (or a Subsidiary thereof) shall have entered into each applicable Ancillary Agreement and each such agreement shall be in full force and effect;
(d) since the date of this Agreement to the Closing DateAgreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Tiger Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.Effect; and
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fi) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) Initial Audited Financial Statements and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect the Initial Audited Financial Statements shall not differ from the applicable Tiger Unaudited Financial Statements in a manner that is material to the Merger adopted by its Members attached thereto, intrinsic value (determined in a manner consistent with appropriate valuation methodologies) of the Tiger Business in a manner that is adverse (excluding any differences resulting from (x) any changes in the amount of goodwill or intangible assets and (iiiy) resolutions with respect to the authorization matters described on Section 9.02(e) of the Note, and (iiiSpinCo Disclosure Schedule); provided that Parent shall be deemed to have irrevocably waived the condition set forth in this Section 9.02(e) incumbency and signatures if it does not exercise its right to terminate this Agreement pursuant to Section 10.01(c)(ii) within 20 Business Days following the Company’s delivery of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementInitial Audited Financial Statements.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Westinghouse Air Brake Technologies Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction (or before the Closing, of each waiver by Parent) of the following further conditions:
(a) During each representation and warranty of the period from Company in Sections 4.1 (Organization), 4.2 (Capitalization; Subsidiaries) and 4.3 (Authorization; Validity of Agreement; Company Action) that is qualified as to materiality or Company Material Adverse Effect shall be true and accurate, and each not so qualified shall be true and correct in all material respects, as of the date of this Agreement to and as of the Closing DateDate as if made at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, there shall not have occurred a in which case each such representation and warranty qualified as to materiality or Company Material Adverse Effect on shall be true and correct, and each not so qualified shall be true and correct in all material respects, as of such date or with respect to such period); each of the Company or its business.
(b) The other representations and warranties of the Company contained herein that are qualified shall be true and accurate (disregarding any qualifications as to materiality shall be true in all respects on or Company Material Adverse Effect contained therein) as of the date of this Agreement and as of the Closing Date with the same force and effect as though if made on at and as of such date, and each of the time (other than those representations and warranties that address matters only as of the Company that are not so qualified shall a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate would not, individually or in all material respects.the aggregate, have a Company Material Adverse Effect;
(cb) The the Company shall have performed and complied in all material respects with all covenants, agreements, its obligations and conditions hereunder required by this Agreement to be performed or complied with by the Company it at or prior to the Closing.;
(c) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(h) and Section 7.2(i) have been satisfied, which certificate shall include a true and correct copy of the Reference Balance Sheet prepared by the Company and reasonably acceptable to Parent;
(d) There there shall not be threatenedpending or threatened any action, instituted claim, suit, proceeding or pending any Proceeding by investigation challenging or before any court seeking to restrain or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits prohibit the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability Merger or any other Transaction or seeking to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.impose any Burdensome Condition;
(e) On since the Closing Datedate of this Agreement, there shall not have been any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be no effective Order issued by expected to have a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.Company Material Adverse Effect;
(f) The Company all applicable Governmental Entities, including the NYSDFS, shall have delivered granted all necessary approvals, consents and authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to Parent a certificateor required by such Governmental Entities shall have been made, dated necessary to permit the Closing DateInsurance Company to declare and pay the Extraordinary Dividend in an amount not less than the Minimum Extraordinary Dividend Amount, executed by a duly authorized Member certifying the fulfillment of the conditions specified such approvals, consents, authorizations, filings and notices shall be in Sections 7.02(a)full force and effect, (b) and (c).such Extraordinary Dividend shall have been declared and paid in full in accordance with such approvals, consents, authorizations, filings and notices;
(g) The Company all applicable Governmental Entities, including the NYSDFS and the Delaware Department of Insurance, shall have delivered granted all necessary approvals, consents and authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to Parent and Merger Sub a certificateor required by such Governmental Entities shall have been made, dated the Closing Date, executed by a duly authorized Member, certifying as necessary to permit (i) its Organizational Documents, the Insurance Company and Parent to enter into the Coinsurance Agreement in substantially the form attached hereto as Exhibit B and consummate the Reinsurance Transaction and (ii) resolutions with respect the applicable parties to enter into each Affiliate Agreement in substantially the Merger adopted by its Members form attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.hereto as Exhibit A;
(h) All documents the Net Assets of the Company, prior to receipt of the Extraordinary Dividend, as set forth on the Reference Balance Sheet (i) shall be delivered by not less than $40 million and (ii) shall be comprised of substantially the same type and mix of assets, including with respect to duration and credit-quality, as the Net Assets of the Company to Parent and Merger Sub at on the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.date hereof; and
(i) All Consents the aggregate amount of all Third Parties impairments and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery realized losses recognized by the Company and its Subsidiaries in accordance with SAP on Investment Assets (other than investments in limited partnerships) (i) with respect to which Parent or (b) the consummation by its Representatives reasonably and in good faith recommended that the Company and its Subsidiaries dispose of pursuant to Section 6.2(c) and (ii) that result from a decline in value after the Mergerdate of such recommendation (the “Recommendation Date”) (provided that the decline in value of an Investment Asset after the Recommendation Date shall be deemed to be zero if the Company sells such Investment Asset within five Business Days after the Recommendation Date or, despite using reasonable best efforts to sell such Investment Asset from and copies of all after the Recommendation Date, the Company is unable to sell such Consents Investment Asset), shall have been delivered to Parentnot exceed $5 million.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under to effect the transactions contemplated by this Agreement are shall be further subject to the satisfaction, fulfillment at or before prior to the Closing, of each Closing Date of the following conditions, any one or more of which may be waived by Parent:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein Principal Stockholders and Phoenix set forth in this Agreement that are qualified as to materiality or Material Adverse Effect shall be true and correct and (ii) the representations and warranties of the Principal Stockholders and Phoenix set forth in this Agreement that are not so qualified shall be true and correct in all respects on and material respects, in each case, as of the Closing Date with the same force and effect Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and each warranty shall be true and correct or true and correct in all material respects, as the case may be, as of such specified date) except that the representations and warranties of the Company that are not so qualified set forth in Sections 3.1, 3.2, 4.1, 4.2 and 4.3 shall be true in all material respectsand correct.
(cb) The Company Principal Stockholders and Phoenix shall have performed and complied in all material respects with all covenants, agreements, obligations the covenants and conditions required by agreements contained in this Agreement required to be performed or and complied with by Principal Stockholders or Phoenix, as the Company case may be, at or prior to the Closing.Closing Date;
(c) Parent shall have received a certificate dated the Closing Date from the Principal Stockholders and Phoenix to the effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied;
(d) There all Phoenix Required Approvals shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.been obtained;
(e) On since the Closing Datedate of this Agreement, there shall not have occurred or been discovered any change, event, circumstance or development that has had, or would reasonably be no effective Order issued by expected to have, individually or in the aggregate, a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.Material Adverse Effect;
(f) The each party to the Ancillary Agreements (other than Parent or Merger Sub) shall have executed and delivered the Ancillary Agreements;
(g) duly executed UCC 3 termination statements, mortgage releases, together with a letter from each secured party or mortgagee, unconditionally agreeing to release the security interest held by such secured party against receipt of a stated sum representing the total amount owed by the Company to such secured party;
(h) the Company shall have delivered duly executed resignations of all of the directors and officers of the Company and the Subsidiaries, provided, that no such resignation of an officer or director from such position shall, in it of itself, constitute a termination of any such individual’s employment with the Company;
(i) the Stockholder Approval shall not have been rescinded;
(j) consummation of satisfactory employment or consulting arrangements with each of the individuals listed on Section 7.3(j) of the Disclosure Schedule;
(k) the Company shall have provided Parent with a statement, pursuant to Section 1.897-2(h) of the Treasury Regulations, certifying that an interest in the Company in not a U.S. real property interest within the meaning of Section 897(c)(1) of the Code;
(l) the Company’s independent accountants shall have completed the audit of Phoenix and its Subsidiaries with respect to the twelve months ended December 31, 2007 and delivered an audit opinion with respect thereto;
(m) the aggregate number of shares of Phoenix Common Stock that are Dissenting Shares shall not exceed 11% of the shares of Phoenix Common Stock outstanding immediately prior to the Effective Time;
(n) the Company shall have delivered to Parent a certificateduly executed letter agreements in form and substance reasonably satisfactory to Parent and its counsel, dated providing for the payment and cancellation of all of the outstanding Indebtedness (other than the Notes) as of the Closing Date, executed by a duly authorized Member certifying ;
(o) all conditions (other than the fulfillment consummation of the conditions specified Merger) to the purchase of the outstanding Notes in Sections 7.02(a)the Debt Offer and/or the Redemption shall have been satisfied and discharged in compliance with the terms of the Notes and applicable Law and as contemplated by the Debt Documents, (b) and (c).the Notes shall have been purchased in the Debt Offer and/or called for redemption and the Indenture satisfied and discharged in compliance with the terms of the Notes and applicable Law and as contemplated by the Debt Documents;
(gp) The Company shall have delivered to Parent and Merger Sub received from the agent under its Credit Agreement a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions waiver with respect to the Merger adopted by its Members attached theretoDebt Offer, the Solicitation and the Redemption;
(iiiq) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who Plan Trustee shall have executed voted upon this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.transactions contemplated hereunder; and
(hr) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities existing stockholders’ agreement shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentterminated.
Appears in 1 contract
Sources: Merger Agreement (Visant Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Mergers are subject to the satisfaction, at satisfaction (or before the Closing, of each waiver by Parent and Merger Sub) of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(bi) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified set forth in Sections 3.1 (excluding Section 3.1(d)), 3.2, 3.3(b) (but only clause (i) thereof), 3.4, 3.18 and 3.20 shall be true and accurate in all material respects.respects (except for any de minimis inaccuracies) both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period), (ii) the representations and warranties of the Company set forth in Section 3.6(b) shall be true and accurate in all respects both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of the Company set forth in Article III shall be true and accurate in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and accurate would not, individually or in the aggregate, have a Company Material Adverse Effect;
(cb) The the Company shall have performed and complied in all material respects with all covenants, agreements, its obligations and conditions hereunder required by this Agreement to be performed or complied with by the Company it at or prior to the Closing.;
(c) since the date of this Agreement, there shall not have occurred and be continuing any Company Material Adverse Effect;
(d) There Parent shall not be threatened, instituted or pending any Proceeding have received a certificate signed by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation executive officer of the MergerCompany, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after dated as of the Closing or (cDate, to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) could and Section 6.2(c) have a Material Adverse Effect on the Company.been satisfied;
(e) On the Administration Agreement and the Investment Advisory Agreement shall have been terminated;
(f) Parent shall have received the written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, or another nationally recognized Tax counsel reasonably satisfactory to the Company (which may include outside counsel to the Company), dated as of the Closing Date, there shall be no effective Order issued by to the effect that the Mergers, taken together, will qualify as a court “reorganization” within the meaning of competent jurisdiction restraining or prohibiting the consummation Section 368(a) of the Merger.
Code. In rendering the opinion described in this Section 6.2(f), the Tax counsel rendering such opinion may require and rely upon (fand may incorporate by reference) The Company shall have delivered to Parent a certificatereasonable and customary representations and covenants, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment including those contained in certificates of officers of the conditions specified in Sections 7.02(a), (b) Company and (c).Parent;
(g) The the Company shall have delivered provided evidence satisfactory to Parent and Merger Sub a certificatethat each of the CLO Conditions (as defined in Section 6.2(g) of the Company Disclosure Letter) has been satisfied; provided, dated that if the Closing Datehas not occurred prior to November 23, executed by a duly authorized Member2020, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization each of the NoteCLO Conditions will be deemed satisfied upon the occurrence of a Payoff Event. For purposes of this Agreement, and (iii) incumbency and signatures “Payoff Event” means the redemption in whole of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at Notes outstanding under the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessaryIndenture, in the opinion of Parent counsel, in connection compliance with (a) the execution Sections 9.2 and delivery by the Company or (b) the consummation by the Company 9.4 of the MergerIndenture, and copies of all such Consents shall have been delivered to Parent.on or after November 23, 2020;
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following further conditions:
(a) During (i) the period from the date Company shall have performed in all respects its obligations under Section 2.03(a) and in all material respects all of this Agreement its obligations hereunder other than those under Section 2.03(a), in each case required to be performed by it at or prior to the Closing DateEffective Time, there shall not have occurred a Material Adverse Effect on (ii) the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this Agreement, other than the Identified Company Representations, shall be true in all respects on and correct without regard to any materiality or Company Material Adverse Effect qualifiers contained therein at and as of the Closing Date with the same force and effect Effective Time as though if made on at and as of such date, and each of time (except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), with only such exceptions, individually or in the aggregate, as have not had and would not reasonably be expected to have a Company Material Adverse Effect, (iii) the Identified Company Representations shall be true and correct at and as of the Effective Time as if made at and as of such time (except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), with only such exceptions as have not resulted in or would not reasonably be expected to result in costs or liabilities to the Company, in the aggregate, of more than the sum of (x) $500,000 and (y) the Additional Company Deposit, and (iv) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect;
(b) appraisal rights that are were properly exercised in accordance with Section 262 of Delaware Law shall not so qualified shall be true in all material respects.remain outstanding at the Effective Time with respect to more than 20% of the outstanding shares of Company Stock at such time; and
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment certified copies of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documentsthe resolutions duly adopted by the Board of Directors of the Company authorizing Table of Contents the execution, delivery and performance of this Agreement and the Transactions, (ii) the resolutions with respect to the Merger duly adopted by its Members attached thereto, the Company’s shareholders adopting this Agreement and (iii) resolutions with respect the certificate of incorporation and the bylaws of the Company as then in effect immediately prior to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementEffective Time.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Netiq Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to effect the Merger and to perform their other obligations to be performed at or subsequent to the Closing shall be subject to the satisfaction, fulfillment at or before prior to the Closing, of each Closing of the following additional conditions, any one or more of which may be waived by Parent or Merger Sub:
(ai) During the period from the date The Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on Effective Time and (ii ii) the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as with reference to a Company Material Adverse Effect or materiality shall be true in all respects on and as of the Closing Date with the same force correct and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true and correct in all material respects, in each case as of the date hereof, and, except to the extent such representations and warranties speak as of an earlier date, as of the Effective Time as though made at and as of the Effective Time.
(b) Parent shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Parent, dated on or about the Closing Date, and such other facts, representations and assumptions as counsel may reasonably deem relevant, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code; that each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and that no gain or loss will be recognized by a stockholder of the Company on the conversion of Company Common Stock into Parent ADSs pursuant to the Merger (except with respect to any cash received in lieu of a fractional share), provided that (i) Company complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), (ii) the Company stockholder owns (including beneficial, indirect and constructive ownership) less than five percent of the total voting power and total value of Parent's outstanding stock immediately after the Merger, and (iii) the Company stockholder complies with the notice requirements of Section 6038B of the Code; and
(c) The Company Since September 30, 1997, there shall not have performed and complied occurred any material adverse change in all material respects with all covenantsthe general affairs, agreementsmanagement, obligations and conditions required by this Agreement to be performed business, operations, assets or complied with by condition (financial or otherwise) of the Company at or prior to (including loss of a significant portion of the Closingemployees in the Company's research department).
(d) There All the consents and approvals, and notifications and disclosures, and filings and registrations listed in Sections 3.05(b) and 4.05(b) hereof shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Companybeen obtained.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company Parent shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessaryreceived agreements, in substantially the opinion form attached hereto as Exhibit 7.02, restricting such individual's ability to dispose of Parent counsel, in connection with (a) ADSs held by such individual for a period of one year from the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentEffective Date.
Appears in 1 contract
Sources: Merger Agreement (Sano Corp)
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under this Agreement to effect the Merger are subject to the satisfaction, satisfaction at or before prior to the Closing, of each Effective Time of the following conditions:
(a) During the period from representations and warranties contained in Article III shall be true and correct as of the Closing as if made at and as of the Effective Time (except for representations and warranties that expressly relate to a specific date of this Agreement prior to the Closing DateEffective Time which need only be true and correct as of such earlier date); provided, there however, that this condition shall not have occurred be deemed satisfied unless any and all inaccuracies in the representations and warranties contained in Article III, in the aggregate, result in a Material Adverse Effect on the Company or its business.
(b) The representations and warranties ignoring for the purposes of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required this Section any qualifications by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage otherwise by material adversity and any materiality qualification or words of similar import contained in such representations or warranties), and, at the Company after Closing, the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed certificate signed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), its chief executive officer and chief financial officer to that effect;
(b) each of the covenants and (c).
(g) The obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and Merger Sub chief financial officer to that effect;
(c) no Material Adverse Effect on the Company shall have occurred since the date of this Agreement, and, at the Closing, the Company shall have delivered to Parent a certificatecertificate signed by its chief executive officer and chief financial officer to that effect;
(d) the Escrow Agreement substantially in the form of Exhibit A hereto, dated shall have been duly executed and delivered by the Closing DateHolder Representative and the Escrow Agent;
(e) the holders of not more than 5% of the outstanding shares of Common Stock and Preferred Stock (calculated, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Preferred Stock, on an as-converted basis) in the aggregate shall have exercised their appraisal rights in accordance with Section 262 of the DGCL;
(f) Intentionally omitted;
(g) the employees of the Company listed in Section 6.2(g) of the Disclosure Schedule shall have signed (as indicated on the Section 6.2(g) of the Disclosure Schedule) employment agreements in the form attached hereto as Exhibit G or employment continuation letters;
(h) the Company shall have delivered to Parent the Company Transaction Expense Notice, pursuant to Section 2.12(b) and the updated Merger adopted Consideration Schedule pursuant to Section 2.12(c);
(i) the Company shall have delivered to Parent the payoff letters and Encumbrance-release documentation pursuant to Section 2.12(f);
(j) holders of eighty-five percent (85%) of the outstanding shares of Preferred Stock and holders of eighty-five percent (85%) of the outstanding Common Stock shall have executed the written consent in the form attached as Exhibit F hereto approving, among other things, a schedule identical to the Merger Consideration Schedule setting forth the estimated payments to be made by its Members attached thereto, and (iii) resolutions Parent with respect to the authorization Preferred Stock, Common Stock, In-the-Money Options and In-the-Money Warrants in accordance with the terms hereof;
(k) Parent shall have received legal opinions from P▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Meitar, Liquornik, Geva & Leshem B▇▇▇▇▇▇▇▇ and O▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the forms attached hereto as Exhibit H; and
(l) Parent shall have received a certificate executed by the Secretary of the Note, and (iii) incumbency and signatures Company certifying as of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
Date (i) All Consents a true and complete copy of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or Charter and Company By-Laws and (bii) incumbency matters with respect to the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentCompany.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to effect the Merger is subject to the satisfaction, satisfaction at or before prior to the Closing, of each Effective Time of the following conditions:
(a) During the period from the date of Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.Effective Time;
(b) The each of the representations and warranties of the Company contained herein that are qualified as in this Agreement (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), shall be true and correct, in all respects on and each case as of the Closing Date with the same force and effect Effective Time as though made on and as of the Effective Time, except (i) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date, subject to the qualifications in (i) above; and each (iii) for changes expressly permitted as contemplated by the terms of the representations and warranties of the Company that are not so qualified shall be true in all material respects.this Agreement;
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by from the date of this Agreement through the Effective Time, there shall not have occurred any change in the financial condition, business or operations of Company and its Subsidiaries, taken as a whole, that constitutes or would reasonably be expected to be performed or complied with by the constitute a Company at or prior to the Closing.Material Adverse Effect;
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company Parent shall have delivered to Parent received a certificate, dated the Closing Date, executed certificate signed on behalf of Company by a duly authorized Member certifying officer of the fulfillment Company to the effect that each of the conditions specified in Sections 7.02(a), (bSection 8.2(a)-(c) and (c).has been satisfied in all respects;
(ge) The Company Parent shall have delivered received opinions from Vinson & Elkins L.L.P. both prior to Parent the effectiveness of the Registr▇▇▇▇▇ Sta▇▇▇▇▇▇ and Merger Sub a certificate, dated immediately prior to the Closing Date, executed by a duly authorized Member, certifying as Effective Time to the effect that (i) its Organizational Documentsthe Merger, if consummated in accordance with the terms of this Agreement, will constitute a reorganization under Section 368(a) of the Code, (ii) resolutions with respect Parent, Company and Merger Sub will each be a party to the Merger adopted by its Members attached theretothat reorganization, and (iii) resolutions no gain or loss will be recognized for U.S. income tax purposes by Parent or Company, except with respect to the authorization distribution of the NoteTrust Units, and (iii) incumbency and signatures because of the persons who have executed Merger; provided, however, that if the counsel to Parent shall not render such opinion, this Agreement and any other documents, certificates and agreements condition shall nonetheless be deemed to be executed satisfied if counsel to Company shall render such opinion to Parent; provided, further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and delivered at the Closing pursuant to this Agreement.Company Tax Certificate; and
(hf) All documents to be delivered by each of the consent, waivers and approvals set forth in Section 4.4(c) of the Company Disclosure Schedule (other than with respect to Parent the office leases in Houston, Texas and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(iDeSoto, Texas) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Mergerobtained, and copies of all such Consents Company shall have been delivered to Parentprovided Parent with copies thereof.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company United, Promark and a Majority of United Stockholders contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company United, Promark and a Majority of United Stockholders that are not so qualified shall be true in all material respects.
(cb) The Company United, Promark and a Majority of United Stockholders shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company United, Promark and a Majority of United Stockholders at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company United and Promark after the Closing or (c) could have a Material Adverse Effect on the CompanyUnited or Promark.
(ed) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fe) The Company United, Promark and a Majority of United Stockholders shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member officer of United and Promark and by each of said United Stockholders certifying the fulfillment of the conditions specified in Sections 7.02(a10.2(a), (b) and (c).
(gf) The Company United shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Memberthe Secretary of United, certifying as to (i) its Organizational United’s Governing Documents, (ii) resolutions with respect to the Merger adopted by its Members United’s board of directors and shareholders attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(hg) All documents to be delivered by United and to be delivered by the Company United Stockholders to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger SubParent.
(ih) All Consents of all Third Parties and Governmental Authorities Bodies shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by United, Promark and the Company United Stockholders of this Agreement or (b) the consummation by United and the Company United Stockholders of the Merger, and copies of all such Consents shall have been delivered to Parent.
(i) Escrow Agent and the United Stockholders shall have executed and delivered triplicate originals of the Escrow Agreement to Parent.
(j) The United Stockholders shall have delivered the Certificates and the United Optionholders shall have delivered the United Option Letters to the Escrow Agent.
(k) Parent shall have completed the Merger Financing and received the proceeds thereof to enable Parent to deliver the Merger Consideration to the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Iceweb Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company Money Centers contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company Money Centers that are not so qualified shall be true in all material respects.
(cb) The Company Money Centers shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company Money Centers at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s 's ability to exercise control over or manage the Company Money Centers after the Closing or (c) could have a Material Adverse Effect on the CompanyMoney Centers.
(ed) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fe) The Company Money Centers shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member officer of Money Centers certifying the fulfillment of the conditions specified in Sections 7.02(a8.2(a), (b) and (c).
(gf) The Company Money Centers shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Memberthe Secretary of Money Centers, certifying as to (i) its Organizational Money Centers' Governing Documents, (ii) resolutions with respect to the Merger adopted by its Members Money Centers' board of directors and shareholders attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement Agreement, the Related Agreements to which it is a Party and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementAgreement or any of the Related Agreements to which it is a party on behalf of Money Centers.
(g) Parent shall have received an opinion of Klehr, Harrison, Branzburg & Ellers LLP, counsel to Money Centers, dated the Closing Date, in form ▇▇▇ ▇ubstance reasonably satisfactory to Parent.
(h) All Shareholder shall have entered into an employment agreement with Parent on terms and conditions reasonably acceptable to Parent.
(i) The Related Agreements to which Money Centers is a party and all other documents to be delivered by the Company Money Centers to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger SubParent.
(ij) All Consents of all Third Parties and Governmental Authorities Bodies shall have been obtained that are necessary, in the opinion of Parent counselCounsel, in connection with (a) the execution and delivery by Money Centers of this Agreement and the Company Related Agreements to which it is a Party or (b) the consummation by the Company Money Centers of the Merger, Merger and copies of all such Consents shall have been delivered to Parent.
(k) Parent shall have completed a business and legal due diligence investigation of Money Centers, its assets and properties and the Business, the results of which shall be satisfactory to Parent in its sole discretion.
(l) Parent shall receive possession of the Certificates.
(m) Parent shall receive from Money Centers audited consolidated and consolidating balance sheets and statements of income, change in stockholders' equity and cash flow as of and for the twelve months ended September 30, 2003.
(n) Money Centers shall deliver an industry-standard commitment letter to Parent providing for the refinancing of its existing vault cash and, upon consummation of the acquisition of Chex Services, Inc. by iGames Entertainment, Inc., the existing vault cash of Chex Services, Inc. Such commitment letter shall be subject to the standard contingencies for commitment letters in this area of financing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Igames Entertainment Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each valid waiver of the following further conditions:
(a) During the period from Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) the representations and warranties (i) set forth in Sections 4.2(a) through (c), 4.4 and 4.7 shall be true and correct in all respects (except for inaccuracies that are de minimis in the aggregate) as of the date of this Agreement and as of the Effective Time as if made at and as of such time and (ii) set forth in Article IV, other than those described in clause (i) above, shall be true and correct as of the date of this Agreement and as of the date of the Effective Time as if made at and as of such time (without giving effect to any materiality qualifications set forth therein), except in the Closing Datecase of this clause (ii) where the failure to be so true and correct does not constitute a Material Adverse Effect on the Company and except where the failure to be so true and correct relates to facts or circumstances of which any member of the Senior Management Team had knowledge as of the date hereof or should have had knowledge by reason of being a member of the Senior Management Team, provided that representations made as of a specific date shall be required to be so true and correct (subject to such qualifications) as of such date only; and
(c) Parent and Merger Sub shall have received a certificate signed by a senior officer of the Company attesting to Section 7.2(a) and (b) above;
(d) there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a other than Material Adverse Effect on the Company.Company of which as of the date hereof any member of the Senior Management Team had knowledge or should have had knowledge by reason of being a member of the Senior Management Team;
(e) On the Closing DateCompany shall have delivered an affidavit satisfying the requirements of Treasury Regulation Section 1.1445-2(c)(3), there in form and substance reasonably satisfactory to Parent, to Parent;
(f) the aggregate number of shares of Common Stock at the Effective Time, the holders of which have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the DGCL, shall be not equal 7.5% or more of the Common Stock outstanding as of the record date for the Stockholder Meeting; and
(g) no effective Order issued by a material action, suit or proceeding is pending in any court of competent jurisdiction restraining or prohibiting which has the effect of preventing the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect Financing on terms substantially similar to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to terms set forth in the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and Financing Letters delivered at the Closing pursuant to this AgreementSection 6.4(a) hereof; provided that Parent has used commercially reasonable efforts to contest or resolve such action, suit or proceeding.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (CKX, Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each waiver of the following further conditions:
(a) During the period from the date The Company shall have performed in all material respects all of this Agreement its obligations hereunder required to be performed by it at or prior to the Closing Date, there shall not have occurred a Material Adverse Effect on Effective Time; the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this Agreement (i) set forth in Sections 4.2 and 4.5 shall be true and correct in all respects (except, in the case of Section 4.5, for inaccuracies that are de minimis in the aggregate) on the date hereof and as of the Effective Time as if made at and as of such time and (ii) other than those described in clause (i) above, shall be true and correct in all respects on the date hereof and as of the Closing Date with date of the same force and effect Effective Time as though if made on at and as of such datetime (without giving effect to any qualification as to “materiality” or “Material Adverse Effect” set forth herein), except in the case of this clause (ii) where the failure to be so true and each correct does not constitute a Material Adverse Effect, provided that representations made as of a specific date shall be required to be so true and correct (subject to such qualifications) as of such date only; and Parent and Merger Sub shall have received a certificate signed by the representations Chief Executive Officer and warranties the Chief Financial Officer of the Company that are to the foregoing effect.
(b) The aggregate number of Shares at the Effective Time, the holders of which have demanded purchase of their Shares in accordance with the provisions of Section 262 of the DGCL, shall not so qualified shall be true in all material respectsequal 10% or more of the Shares outstanding as of the record date for the Company Stockholders Meeting.
(c) The Company shall have performed and complied in all material respects with all covenantsSince the date of this Agreement, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There there shall not have occurred and be threatenedcontinuing any change, instituted event, occurrence, development or pending any Proceeding by circumstance which, individually or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits in the consummation of the Mergeraggregate, (b) could have constitutes a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the CompanyEffect.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Contemplated Transactions are subject to the satisfaction, fulfillment at or before prior to the Closing, Closing of each of the following additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company and of each of the Shareholders contained herein that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects on and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date with the same force and effect as though such representations and warranties were made on at and as of such date, and each of the date (except for representations and warranties made as of a specified date, which shall speak only as of the specified date).
(b) Each of the Company that are not so qualified shall be true in all material respects.
(c) The Company and the Shareholders shall have performed and or complied with in all material respects with all covenants, agreements, obligations covenants and conditions contained herein required by this Agreement to be performed or complied with by the Company at or it prior to or at the time of the Closing.
(dc) There Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate, has had or would reasonably be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could expected to have a Company Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the CompanyEffect.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fd) The Company and the Shareholders shall have delivered to Parent a certificateand Merger Sub certificates, dated the Closing Datedate of the Closing, executed signed by a duly authorized Member an executive officer of the Company and by the Shareholders, certifying as to the fulfillment of the conditions specified in Sections 7.02(aSection 8.2(a), (bSection 8.2(b) and Section 8.2(c).
(c)e) All of the Company Consents set forth on Section 8.2(e) of the Company Disclosure Schedule shall have been obtained.
(f) The Nadaud Intellectual Property Transfer shall have been completed.
(g) The Company shall have delivered to Parent such audited and Merger Sub a certificateunaudited financial statements for the Company and the Subsidiaries, dated prepared in accordance with GAAP, as are required to be filed by Parent with its Current Report on Form 8-K in connection with the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization consummation of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementContemplated Transactions.
(h) All documents to be delivered by proceedings of the Company to Parent Company, the Subsidiaries and Merger Sub at the Closing Shareholders that are required in connection with the Contemplated Transactions shall be reasonably satisfactory in form and substance to Parent and Merger Subits counsel, and Parent and its counsel shall have received such evidence of any such proceedings, good standing certificates (if applicable), organizational and governing documents, certified if requested, as may be reasonably requested and is customary in transactions such as this one.
(i) All Consents shareholders agreements, voting agreements, registration rights agreements and similar agreements between or among any of the Company, the Subsidiaries, the Shareholders and/or any of their respective Affiliates (other than the Registration Rights Agreement), and all Third Parties and Governmental Authorities other agreements set forth on Section 8.2(i) of the Company Disclosure Schedule, shall have been obtained that are necessaryterminated, in the opinion without any further liability or obligation of Parent counsel, in connection with (a) the execution and delivery by any of the Company or (b) the consummation by the Company of the MergerSubsidiaries thereunder, and copies shall cease to be of all such Consents shall have been delivered to Parentforce or effect.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under to consummate the transactions contemplated by this Agreement are subject to the satisfaction, satisfaction at or before prior to the Closing, Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each Each of the representations and warranties of the Company that are not so qualified contained herein, shall be true and correct in all material respects, in each case, when made and on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects, as the case may be, as of the specified date), except where any such failure to be true and correct would not reasonably be expected to result in a Company Material Adverse Effect.
(b) The Company shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the time of the Closing.
(c) The Company shall have performed delivered to Parent (i) a certificate, dated the date of the Closing, signed by an officer of the Company, certifying as to the satisfaction of the conditions specified in Sections 7.2(a) and complied in all material respects with all covenants7.2(b), agreements, obligations and conditions required by this Agreement to be performed or complied with by (ii) a certificate of good standing for the Company at or prior in the State of Delaware and of its Subsidiaries (where applicable) in their jurisdiction of incorporation, dated as of a date reasonably close to the ClosingClosing Date.
(d) There Parent shall not be threatened, instituted or pending any Proceeding have received counterparts to the Escrow Agreement executed by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of Principal Shareholders and the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the CompanyEscrow Agent.
(e) On the Closing DateThe Company shall have obtained, there shall or caused to be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Mergerobtained, each consent described on Schedule 7.2(e).
(f) The Company shall have delivered to Parent a certificate, dated non-compete and non-solicitation agreement substantially in the Closing Date, form of Exhibit B executed by a duly authorized Member certifying the fulfillment each of the conditions specified in Sections 7.02(a), (b) and (c)Principal Stockholders.
(g) The Company ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have delivered to entered into an employment arrangement with the Company or Parent and Merger Sub a certificate, dated substantially in the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization form of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.Exhibit C.
(h) All documents to be delivered by the There shall not have been a Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger SubMaterial Adverse Effect.
(i) All Consents The number of all Third Parties shares of Company Common Stock held by Dissenting Stockholders shall not comprise more than 1% of the total outstanding shares of Company Common Stock.
(j) A pay off letter with respect to the Company’s loans from Citizens Bank and Governmental Authorities a release with respect to the Company’s loan from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery received by the Company or (b) the consummation by the Company of the MergerCompany, each in form and copies of all such Consents shall have been delivered substance reasonably acceptable to Parent.
Appears in 1 contract
Sources: Merger Agreement (IHS Inc.)
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to effect the Merger is subject to the satisfaction, satisfaction at or before prior to the Closing, of each Effective Time of the following conditions:
(a) During the period from the date of Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing DateEffective Time, there and Parent shall not have occurred received a Material Adverse Effect certificate signed on behalf of Company by a duly authorized officer of the Company or its businessto such effect.
(b) The Each of the representations and warranties of the Company contained herein that are qualified as in this Agreement (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), shall be true and correct, in all respects on and each case as of the Closing Date with the same force and effect Effective Time as though made on and as of the Effective Time, except (i) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date, subject to the qualifications in (i) above; and each (iii) for changes expressly permitted as contemplated by the terms of the representations this Agreement, and warranties Parent shall have received a certificate signed on behalf of Company by a duly authorized officer of the Company that are not so qualified shall be true in all material respectsto such effect.
(c) The From the date of this Agreement through the Effective Time, there (i) shall not have occurred any change in the financial condition, business or operations of Company and its Subsidiaries, taken as a whole, that would constitute a Company Material Adverse Effect and (ii) shall not have performed and complied occurred any change in all material respects with all covenantsthe capitalization of the Company from that set forth in Section 4.2, agreements, obligations and conditions other than as required by the terms of this Agreement to be performed or complied with by the Company at or prior to the ClosingAgreement.
(d) There Company shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect provided to Parent on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Date, documentation evidencing Company’s compliance with its obligations set forth under Section 6.1(n).
(e) On the Closing Date, there shall be no effective Order issued The number of shares of Company Common Stock held by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to holders who either (i) its Organizational Documents, have exercised their right to dissent and obtain payment for their shares or (ii) resolutions with respect retain the ability to the Merger adopted by its Members attached thereto, exercise such right to dissent and (iii) resolutions with respect to the authorization obtain payment shall not exceed 1.0% of the Note, and (iii) incumbency and signatures outstanding shares of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementCompany Common Stock.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Gasco Energy Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to effect the Merger is also subject to the satisfactionsatisfaction (or waiver in writing if permissible under applicable Law), at or before prior to the ClosingEffective Time, of each of the following conditions:
(a) During (i) The representations and warranties of the period from Company contained in Section 3.2 (Capitalization) shall be true and correct as of the date of this Agreement and on and as of the Closing Date as if made on and as of such date; (ii) the representations and warranties of the Company contained in Section 3.1 (Corporate Organization), Section 3.3 (Authority), Section 3.9 (Broker’s Fees), Section 3.18 (State Takeover Laws) and Section 3.25 (Disclosure Documents) shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or as of the date hereof, in which case such representations and warranties shall be true and correct in all material respects as of such date); and (iii) each of the representations and warranties of the Company contained in this Agreement (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or similar terms set forth therein) (other than those contained in the preceding clauses (i) and (ii)) shall be true and correct as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or as of the date hereof, in which case such representations and warranties shall be true and correct as of such date), except where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate with respect to all such failures, a Company Material Adverse Effect. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer or President and the Chief Financial 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 and Merger Sub shall have received a certificate signed by the Chief Executive Officer or President and the Chief Financial Officer of the Company to such effect.
(c) There shall not be pending or threatened any suit, action or proceeding, in each case, by any Governmental Authority or any third party, including any actions by one or more Company Stockholders, seeking damages or other amounts in connection with, or to restrain, preclude, enjoin or prohibit, the Merger or any of the other transactions contemplated by this Agreement;
(d) Between the date of this Agreement and the Closing Date, there shall not have occurred any Circumstance which individually or in the aggregate with all other Circumstances has had or would reasonably be expected to have a Company Material Adverse Effect on Effect. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer or President and Chief Financial Officer of Company or its business.to such effect;
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(ce) The Company shall have performed and complied redeemed the Series B Preferred Stock in all material respects accordance with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company at or prior to the Closing.Section 1.5;
(df) There shall not have occurred and be threatenedcontinuing any general suspension of, instituted or pending limitation on trading in securities on NASDAQ (other than a shortening of trading hours or any Proceeding by coordinated trading halt triggered solely as a result of a specified increase or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have decrease in a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.market index); and
(eg) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company Parent shall have delivered received the opinion of King & Spalding LLP, counsel to Parent a certificateParent, dated the Closing Date, executed by to the effect that the Merger will be treated for United States federal income tax purposes as a duly authorized Member certifying reorganization within the fulfillment meaning of Section 368(a) of the conditions specified Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon customary assumptions and representations provided by Parent and the Company that counsel to Parent reasonably deems relevant.
(h) Parent shall have received the Mayo Non-Compete and Non-Solicit Agreement.
(i) There shall not have occurred (i) a Security Breach which, either individually or collectively with all related breaches, has resulted in, or would reasonably be expected to result in, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties to the Company of more than $1,000,000 (a “Material Security Breach”) or (ii) any facts, circumstances or events that would reasonably be expected to result in a Material Security Breach.
(j) Parent shall have received a properly executed statement, issued by the Company pursuant to Treasury Regulation Sections 7.02(a), (b1.897-2(h) and 1.1445-2(c)(3) dated no more than thirty (c30) days prior to the Closing Date and signed by an officer of the Company, and in form and substance reasonably satisfactory to Parent, certifying that interests in the Company, including shares of Company Common Stock, do not constitute “United States real property interests” under Section 897(c) of the Code, and the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulation Section 1.897-2(h)(2).
(gk) Parent shall have acquired one hundred percent (100%) of the Start Media Joint Venture pursuant to the terms and conditions set forth in the Start Media Purchase Agreement.
(l) The Company shall have delivered obtained, in form and substance satisfactory to Parent Parent, the third party consents set forth on Schedule 7.2(l), and Merger Sub all such consents shall be in full force and effect at the Closing.
(m) The Company shall have cancelled and terminated, in form and substance satisfactory to Parent, the third party agreements set forth on Schedule 7.2(m).
(n) There shall not have occurred a certificate, dated material adverse change to the Closing Date, executed by a duly authorized Member, certifying as net debt or working capital amounts set forth in the Company Balance Sheet (except for changes related to (i) its Organizational Documentsthe Pipeline Transactions, (ii) payments by the Company under outstanding loan agreements, (iii) the redemption of the Series B Preferred Stock in accordance with this Agreement and (iv) the occurrence of capital expenditures by the Company, in each case, to the extent permitted by this Agreement).
(o) The Company Board shall have adopted resolutions terminating, effective immediately prior to the Closing, the pension plan sponsored by the Company that is intended to meet the requirements of Section 401(k) of the Code (the “401(k) Plan”), and the Company shall have (i) taken all actions reasonably requested by Parent to ensure that the 401(k) Plan is in compliance with all applicable requirements of the Code and regulations thereunder for all periods through the date of its termination and is eligible to receive a favorable determination letter from the IRS with respect to its termination and (ii) submitted an application to the IRS under the Voluntary Compliance Program, following Parent’s review and approval of such application, to correct any operational failures identified by Parent with respect to the Merger adopted by its Members attached thereto, and (iii401(k) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementPlan.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Digital Cinema Destinations Corp.)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are to consummate the Merger shall be subject to the satisfaction, fulfillment at or before prior to the Closing, Effective Time of each of the following conditions:conditions (any of which may be waived by Parent or Merger Sub):
(a) During (i) Each of the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified set forth in Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Authority; Board Approval) and Section 4.22 (Brokers) (in each case without giving effect to any qualification as to materiality “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect set forth therein) shall be true and correct in all respects on and but de minimis respects, in each case as of the Closing Date with the same force and effect as though made on at and as of such date (except to the extent that such representations address matters only as of a specified date, and the accuracy of which shall be determined as of such specified date), (ii) each of the representations and warranties set forth in Section 4.4 (Capitalization) (in each case without giving effect to any qualification as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of the Company that are not so qualified similar import or effect set forth therein) shall be true and correct in all material respects, in each case as of the Closing Date with the same effect as though made at and as of such date (except to the extent that such representations address matters only as of a specified date, the accuracy of which shall be determined as of such specified date), and (iii) each of the other representations and warranties set forth in Article IV (in each case without giving effect to any qualification as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect set forth therein) shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of the specified date), except where the failure of such representations and warranties to be true and correct would not have (and would not reasonably be expected to have) a Material Adverse Effect.
(cb) The Company Shift shall have performed and or complied in all material respects with all covenants, agreements, obligations covenants and conditions required by this Agreement to be performed or complied with by the Company at Shift on or prior to the ClosingClosing Date.
(c) No Material Adverse Effect shall have occurred and be continuing.
(d) There Shift shall not be threatenedhave delivered a certificate, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation dated as of the MergerClosing Date and signed by an authorized representative of such Company Entity, (bthat each of the conditions set forth in Section 7.2(a) could through Section 7.2(c) have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Companybeen satisfied.
(e) On The PPP Loans shall have been, or shall be substantially concurrently with the Closing on the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Mergerrepaid in full.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment certificate on behalf of the conditions specified Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 7.02(a1.897-2(g), (bh) and (c1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(g) The Company Shift shall have delivered to Parent copies of the following, each certified by an authorized officer of Shift to be true, correct, complete and Merger Sub a certificate, dated in full force and effect as of the Closing Date, executed by a duly authorized Member, certifying as to : (i) the certificate of incorporation or formation of each Company Entity, certified by the Secretary of State or other appropriate Governmental Authority of its Organizational Documentsjurisdiction of organization or incorporation, as applicable; (ii) resolutions with respect to the Merger adopted by its Members attached thereto, bylaws or operating agreement of each Company Entity; and (iii) the resolutions with respect to the authorization of the NoteShift Board authorizing and approving this Agreement, any applicable Ancillary Agreement and (iii) incumbency and signatures all of the persons who have executed this Agreement transactions contemplated hereby and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreementthereby.
(h) All documents to be Shift shall have delivered by the Company to Parent duly executed counterpart signature page to the Stockholders Letter Agreement from each director and Merger Sub at officer of Shift as of the Closing shall be reasonably satisfactory in form date of this Agreement and substance as of immediately prior to Parent the Effective Time, each Stockholder holding five percent (5%) or more of the Shift Shares (on an as-converted to common stock basis), and Merger SubStockholders who together hold eighty percent (80%) of the Shift Shares (on an as-converted to common stock basis).
(i) All Consents Shift shall have received, and delivered to Parent, an election to exercise the Designated Warrant from the holder thereof, effective as of all Third Parties a time and Governmental Authorities date prior to the Effective Time, and the Shift Shares issuable upon exercise thereof shall have been obtained that are necessaryduly authorized and issued and shall be fully paid and non-assessable.
(j) Shift shall have delivered to Parent the notice of exercise and termination set forth in Section 2.10(c), the Written Consent and the terminations set forth in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the MergerSection 6.20(b), and copies of all each such Consents item shall have been delivered to Parentbe in full force and effect.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Contemplated Transactions are subject to the satisfaction, fulfillment at or before prior to the Closing, Effective Time of each of the following additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of each of the Company Companies and the Shareholders contained herein that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects on and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date with the same force and effect as though such representations and warranties were made on at and as of such date, and each of the date (except for representations and warranties made as of a specified date, which shall speak only as of the Company that are not so qualified shall be true in all material respectsspecified date).
(cb) The Company Each of the Companies and the Shareholders shall have performed and or complied with in all material respects with all covenants, agreements, obligations covenants and conditions contained herein required by this Agreement to be performed or complied with by the Company at or it prior to or at the time of the Closing.
(dc) There Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate, has had or would reasonably be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could expected to have a Company Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the CompanyEffect.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fd) The Company shall have delivered to Parent a certificate, dated Companies and the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company Shareholders shall have delivered to Parent and Merger Sub a certificatecertificates, dated the Closing Datedate of the Closing, executed signed by a duly authorized Memberan executive officer of each of the Companies and by the Shareholders, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization fulfillment of the Noteconditions specified in Section 8.2(a), Section 8.2(b) and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementSection 8.2(c).
(he) All documents to be delivered by of the Company to Parent Consents set forth on Section 8.2(e) of the Company Disclosure Schedule shall have been obtained.
(f) All proceedings of the Companies and Merger Sub at the Closing Shareholders that are required in connection with the Contemplated Transactions shall be reasonably satisfactory in form and substance to Parent and Merger Subits counsel, and Parent and its counsel shall have received such evidence of any such proceedings, good standing certificates (if applicable), organizational and governing documents, certified if requested, as may be reasonably requested and is customary in transactions such as this one.
(ig) All Consents shareholders agreements, voting agreements, registration rights agreements and similar agreements between or among any of the Companies, the Subsidiaries and/or the Shareholders (other than the Registration Rights Agreement), and all Third Parties and Governmental Authorities other agreements set forth on Section 8.2(g) of the Company Disclosure Schedule, shall have been obtained that are necessary, in the opinion terminated and shall cease to be of Parent counsel, in connection with (a) the execution and delivery by the Company force or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parenteffect.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to effect the Merger are also subject to the satisfaction, at satisfaction or before waiver by Parent on or prior to the Closing, of each Closing Date of the following conditions:
(a) During (i) the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are in Sections 2.1 (Organization and Qualification; Subsidiaries), 2.2 (Charter and Bylaws), 2.3 (Capitalization), 2.4(a) (Authority), 2.24 (Takeover Provisions) and 2.25 (Rights Agreement) shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or a Company Material Adverse Effect, which shall be true and correct in all respects on respects) as of the date of this Agreement and as of the Closing Date with the same force and effect as though made on and or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date, ) and each of (ii) the representations and warranties of the Company that are not so qualified in this Agreement other than those specified in the preceding clause (i) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in all material respects.which case as of such earlier date), in each case except where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or a Company Material Adverse Effect) would not, individually or in the aggregate, have a Company Material Adverse Effect;
(cb) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions of its covenants required by this Agreement to be performed or complied with by the Company it under this Agreement at or prior to the Closing.Closing Date;
(c) Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to the effect that the conditions in clauses (a) and (b) above have been so satisfied;
(d) There The number of Dissenting Shares shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation exceed 50% of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage outstanding shares of the Company after Common Stock immediately prior to the Closing or (c) could have a Material Adverse Effect on the Company.Effective Time;
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company Parent shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), received an opinion (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory acceptable in form and substance to Parent and Merger Sub.
Parent) from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the Closing Date, to the effect that for federal income tax purposes (i) All Consents the Merger will be treated as a reorganization within the meaning of all Third Parties Section 368(a) of the Code and Governmental Authorities (ii) each of Parent and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been obtained that are necessarywithdrawn, revoked or modified. Such opinion will be based upon representations of the Parties contained in this Agreement and in the opinion tax representation letters described in Section 5.13; and
(f) From the date of Parent counselthis Agreement through the Closing, there shall not have occurred any event, condition, state of facts or development that has had, individually or in connection with (a) the execution and delivery by aggregate, a Company Material Adverse Effect, the Company or (b) effects of which are continuing at the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to ParentEffective Time.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following conditionsconditions on or prior to the Closing Date:
(a) During no governmental or regulatory authority shall have instituted any claim, action, suit, investigation or proceeding for the period from purpose of enjoining or preventing the date of this Agreement transactions contemplated hereby, or which could reasonably be expected to the Closing Date, there shall not have occurred result in a Material Adverse Effect on the Company or its business.Company;
(b) The representations the Company shall have taken all action necessary to modify or amend the Severance Obligations to provide that the amount of the Severance Obligations payable to the Severance Participants does not, in the aggregate, exceed an amount equal to $1,214,000 exclusive of payroll taxes and warranties other withholding;
(c) the Company shall not have received, pursuant to Section 262 of the DGCL, written demands for appraisal of the fair market value of the Shares from the holders of Company Common Stock representing, in the aggregate, more than eight percent (8%) of the Company contained herein that are qualified as Common Stock entitled to materiality shall be true in vote at the Meeting;
(d) all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company set forth herein that are qualified as to materiality, Material Adverse Effect or Material Adverse Change shall be true and correct, and all of the representations and warranties that are not so qualified shall be true and correct in all material respects., in each case on and as of the Effective Time and at all times prior to the Effective Time (except to the extent such representations and warranties are made as of a specific date, in which case such representations and warranties shall be true and correct, or true and correct in all material respects, as the case may be, as of such date);
(ce) The the Company shall have performed and complied in all material respects with all covenants, agreements, obligations arising under the agreements and conditions covenants required by this Agreement hereby to be performed or complied with by the Company at or it prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.;
(f) The Company since December 31, 2008, there shall not have delivered been any event or occurrence that has had or would reasonably be expected to Parent have, individually or in the aggregate, a certificate, dated Material Adverse Change on the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).Company; and
(g) The the Company shall have delivered to Parent and Merger Sub a certificate, dated has received the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect written opinion of the Financial Advisor to the Merger adopted by its Members attached theretoeffect that, and (iii) resolutions with respect to the authorization as of the Notedate of such opinion, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements consideration to be executed and delivered at received in the Closing pursuant to this Agreement.
(h) All documents to be delivered Merger by the Company Company’s stockholders is fair to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Subsuch holders from a financial point of view.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following conditions:further conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof):
(a) During (i) the period from the date Company shall have performed all of this Agreement its material obligations hereunder required to be performed by it at or prior to the Closing Date, there Effective Time; and (ii) Parent shall not have occurred received a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and certificate dated as of the Closing Date with and signed by the same force and effect as though made on and as of such dateCompany’s President or Chief Executive Officer, and certifying to the foregoing effect;
(b) (i) each of the representations and warranties of the Company that are not so contained in this Agreement shall have been true and correct (without regard to any qualifications to such representations and warranties as to materiality, Material Adverse Effect of similar expressions) at the time originally made (as qualified by the Company Disclosure Schedule) and the representations and warranties made as of the Agreement Date shall be true and correct as of the Effective Time (as qualified by the Company Disclosure Schedule delivered on the Agreement Date), except for breaches of such representations and warranties that, individually or in all material respects.the aggregate, would not and could not reasonably be expected to result in a Material Adverse Effect; and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect;
(c) The no Material Adverse Effect with respect to the Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required occurred or been discovered by this Parent since the Agreement to be performed or complied with by the Company at or prior to the Closing.Date;
(d) There no injunction or other decree shall not be threatened, instituted or pending any Proceeding have been issued by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits of competent jurisdiction prohibiting the consummation sale of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage Company Products by the Company after the Closing or (c) could have a Material Adverse Effect Parent on the Company.basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property);
(e) On ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ will have issued a legal opinion addressed to Parent in the form attached hereto as Exhibit E;
(f) the Company shall have delivered a properly executed statement, dated as of the Closing Date, there shall be no effective Order issued by in a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered form reasonably acceptable to Parent a certificate, dated conforming to the Closing Date, executed by a duly authorized Member certifying the fulfillment requirements of the conditions specified in Sections 7.02(aTreasury Regulation Section 1.1445-2(c)(3), (b) and (c).;
(g) The the Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to certificate that sets forth (i) its Organizational Documentsthe information required to be set forth on Section 3.2 of the Company Disclosure Schedule, updated to reflect capitalization as of immediately prior to the Effective Time (giving effect to any conversion of shares of Company Preferred Stock to Company Common Stock that is made contingent upon the Closing), (ii) resolutions with respect to the Merger adopted by its Members attached theretoFully-Diluted Common Stock Number and the calculation thereof, and (iii) resolutions the aggregate exercise price for all Company Options and Company Warrants outstanding as of the Agreement Date (the “Capitalization Certificate”), which Capitalization Certificate shall be deemed to be representations and warranties of the Company hereunder;
(h) the Company shall have obtained those consents or approvals with respect to the authorization consummation of the NoteMerger of each person listed on Schedule 7.2(h);
(i) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the Closing Payment Amount in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated
(iiij) incumbency and signatures holders of no more than 5.0% of the persons who aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have executed this Agreement and any other documentselected to, certificates and agreements or continue to be executed and delivered at the Closing pursuant have contingent rights to, exercise dissenters’, appraisal or similar rights under California Law with respect to this Agreement.such shares; and
(hk) All documents to be delivered by the Company shall have delivered a certification to Parent and Merger Sub at the Closing shall be reasonably satisfactory Parent, in form and substance (other than with respect to Parent any amounts set forth thereon) satisfactory to Parent, setting forth the maximum amount of fees and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained expenses that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery each professional advisor engaged by the Company or (b) its Board of Directors in connection with this Agreement or the consummation by Company’s efforts to consummate an initial public offering of the Company Common Stock, consisting of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ charge with respect to the transactions contemplated hereby or the Company’s efforts to consummate an initial public offering of the MergerCompany Common Stock (regardless of whether or not such fees and expenses have been billed to, or collected from, the Company) (each a “Transaction Cost Certificate”), and copies of all such Consents Parent shall have been received such written assurances with respect to such amounts from ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ as it shall reasonably request; and
(l) each holder of Company Warrants shall have executed and delivered a amendment, in form and substance reasonably satisfactory to Parent, to the Company Warrants held by such holder acknowledging such holder will receive the portion of the Closing Payment Amount calculated pursuant Section 2.1(c)(ii) in exchange for such Company Warrants; or, alternatively, for any holders who have not delivered such amendment, the Company Warrants held by such holders shall terminate no later than the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to consummate the Merger is subject to the satisfactionsatisfaction or, at to the extent permitted by applicable Law, waiver, on or before prior to the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified set forth in Article 3 shall be true and correct as of the Closing as though made as of the Closing, except those representations that are (A) qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all respects and (B) not qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all material respects., in each case ((A) and (B)) as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except where any failures of any such representations and warranties to be true and correct has not had or would not reasonably be expected to have, individually or in the aggregate with all other Effects, a Company Material Adverse Effect;
(cb) The the Company shall have performed and complied in all material respects with all covenants, agreements, of the obligations and conditions covenants required by this Agreement to be performed or complied with by the Company it at or prior to the Closing.Closing under this Agreement;
(c) since the date of this Agreement, there shall not have occurred and not be continuing any Effect that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect;
(d) There Parent shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits have received at the consummation Closing a certificate signed on behalf of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage Company by the Chief Executive Officer of the Company after certifying that the Closing or (cconditions set forth in Section 6.2(a), Section 6.2(b) could and Section 6.2(c) have a Material Adverse Effect on the Company.been satisfied;
(e) On the aggregate Census of the Owned Healthcare Facilities on the second Business Day prior to the Closing Date, there shall be no effective Order issued lower than 850, as shown by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.true, correct and complete Census report delivered to Parent prior to Closing; and
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing no Owned Healthcare Facility shall be reasonably satisfactory in form and substance to Parent and Merger SubOut-of-Compliance.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Diversicare Healthcare Services, Inc.)
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under this Agreement to effect the Merger are subject to the satisfaction, satisfaction at or before the Closing, of each Effective Time of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on this Agreement and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified Company’s stockholders in the Stockholders Agreement shall be true and correct at and as of the Effective Time with the same effect as if made at and as of the Effective Time except (i) to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date (ii) subject to and qualified by the transactions contemplated herein and (iii) where the failure of the representations and warranties to be true and correct, in the aggregate, does not and would not be reasonably expected to have a Material Adverse Effect;
(b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects.respects at or before the Effective Time;
(c) The all of the issued and outstanding Company Warrants shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed been exercised or complied with by the Company at or prior to the Closing.duly terminated;
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation all of the Merger, (b) could issued and outstanding Company Options shall have a Material Adverse Effect on Parent’s ability to exercise control over been exercised or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.duly terminated;
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation all of the Merger.Company Indebtedness and any and all obligations of the Company to make the severance or other similar payments to any of its directors, officers, employees or consultants, shall have been paid in full, and all mortgages, security interests and other Encumbrances securing or otherwise arising under or relating to such Company Indebtedness, shall have been released, discharged and terminated in full, in each case in form and substance reasonably satisfactory to Parent and its counsel; and
(f) The the Company (and others contemplated by Section 2.15(b)), as the case may be, shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment all of the conditions specified required Closing deliveries set forth in Sections 7.02(a), (bSection 2.15(b) and (c)above.
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Neurobiological Technologies Inc /Ca/)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at satisfaction or before the Closing, of each waiver (where permissible) of the following additional conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality in this Agreement shall be true in and correct (disregarding all respects on and qualifications or limitations as to “materiality” or “Company Material Adverse Effect” or other similar qualifiers set forth therein) as of the Closing Date with the same force and effect Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, and each in which case as of such date), except where the failure of any such representations and warranties of the to be so true and correct has not had, and would not have, a Company that are not so qualified shall be true in all material respectsMaterial Adverse Effect.
(cb) The Company shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, agreements, obligations and conditions required by this Agreement to be performed by, or complied with by the Company by, it under this Agreement at or prior to the ClosingEffective Time.
(c) No Company Material Adverse Effect shall have occurred since the date of this Agreement.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated signed on behalf of the Closing DateCompany by the Chief Executive Officer and Chief Financial Officer of the Company (solely in his capacity as an officer of the Company without personal liability), executed by a duly authorized Member certifying as to the fulfillment satisfaction of the conditions specified in Sections 7.02(a6.2(a), (b) 6.2(b), and (c6.2(c).
(ge) The Company shall have delivered received, on or prior to the Effective Time, an agreement acceptable to Parent and Merger Sub which shall waive, for a certificateperiod of not less than sixty days from the Effective Time, dated any rights the Closing Date, executed by lenders under the Credit Agreement may have (whether of acceleration or otherwise) as a duly authorized Member, certifying result of a Change of Control Event (as defined in the Credit Agreement) being deemed to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization have occurred as a result of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to transactions contemplated by this Agreement.
(hf) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities The Contribution shall have been obtained consummated and DLJ shall have otherwise complied with each of its obligations under the Contribution Agreement; provided, however, that are necessaryParent’s obligation to consummate the Merger shall not be conditioned on the matters described in this clause (f) to the extent any breach by Parent under the Contribution Agreement or this Agreement has been the cause of, in or resulted in, the opinion failure of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered Contribution or DLJ’s failure to Parentcomply with its obligations under the Contribution Agreement.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company United and Promark contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company United and Promark that are not so qualified shall be true in all material respects.
(cb) The Company United and Promark shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company United and Promark at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company United and Promark after the Closing or (c) could have a Material Adverse Effect on the CompanyUnited or Promark.
(ed) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fe) The Company United and Promark shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member officer of United and Promark certifying the fulfillment of the conditions specified in Sections 7.02(a10.2(a), (b) and (c).
(gf) The Company Each of United and Promark shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Memberits Secretary, certifying as to (i) its Organizational Governing Documents, (ii) resolutions with respect to the Merger adopted by its Members board of directors and shareholders attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(hg) All documents to be delivered by the Company United and Promark to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(ih) All Consents of all Third Parties and Governmental Authorities Bodies shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company United and Promark or (b) the consummation by the Company United of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Sources: Merger Agreement (Sand Hills, Inc)
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under to consummate the transactions contemplated by this Agreement are subject to the satisfaction, fulfillment at or before prior to the Closing, Closing Date of each of the following additional conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be have been true in all respects when made and on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the Closing Date (except for representations and warranties made as of a specified date, which shall speak only as of the specified date), except where the failure to be true, individually or in the aggregate, has not had or is not reasonably expected to have a Material Adverse Effect on the Company that are not so qualified shall be true in all material respectsand its subsidiaries taken as a whole.
(cb) The Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions contained herein required by this Agreement to be performed or complied with by the Company at or it prior to or at the time of the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed signed by a duly authorized Member the President or any Vice President of the Company certifying as to the fulfillment of the conditions specified in Sections 7.02(a7.2(a) and 7.2(b).
(d) Parent shall have received an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, dated the Closing Date, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; and (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. The issuance of such opinion shall be conditioned on the receipt by such counsel of representation letters from each of Parent, Merger Sub and the Company, substantially in the forms attached hereto as EXHIBITS C and D in each case, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect.
(e) All authorizations, consents or approvals of any Governmental Entity (other than those specified in Section 7.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall have been obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole), except for such authorizations, consents or approvals, the failure of which to have been obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (bor, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole).
(f) All authorizations, consents or approvals of any third parties (other than those specified in Section 7.2(e)) identified in the Company Disclosure Schedule required for the Company to consummate the Merger and the other transactions contemplated hereby shall have been obtained, except for such authorizations, consents or approvals, the failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (cor, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole).
(g) The Company Parent shall have delivered to received a Lock-Up Agreement executed by each Company Insider and Parent Insider.
(h) Stockholders of the Company holding no more than five percent (5%) of the Company Common Stock shall have elected any appraisal rights or associated payments under Sections 92A-420 and Merger Sub a certificate92A-440 of the NGCL.
(i) Parent shall have received an opinion, dated the Closing Date, executed by a duly authorized Memberfrom ▇▇▇▇▇ & ▇▇▇▇▇▇, certifying as to (i) its Organizational DocumentsL.L.P., (ii) resolutions with respect counsel to the Merger adopted by Company, in the form reasonably acceptable to Parent and its Members attached thereto, and (iii) resolutions with respect to legal counsel regarding the due authorization of the Note, Company entering and (iii) incumbency and signatures of the persons who have executed performing this Agreement and any other documentsthe Merger, certificates enforceability of this Agreement and agreements to be executed the Merger, and delivered at no conflicts with the Closing pursuant to this Agreementarticles of incorporation or bylaws of the Company.
(hj) All documents consents, waivers and other actions referred to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities Section 6.19 shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentand/or taken as provided therein.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfactionsatisfaction (or waiver by Parent, if permissible under Applicable Law), at or before prior to the Closing, of each of the following further conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its businessRepresentations and Warranties.
(bi) The Other than the representations and warranties of the Company contained herein that are qualified as to materiality shall be true listed in all respects on Section 8.02(a)(ii) and as of the Closing Date with the same force and effect as though made on and as of such dateSection 8.02(a)(iii), and each of the representations and warranties of the Company that are not so qualified shall set forth in this Agreement will be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in all material respectswhich case such representation and warranty will be true and correct as of such earlier date), except for such failures to be true and correct that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(cii) The representations and warranties set forth in Section 4.01(a), Section 4.02, the last sentence of Section 4.05(a) and Section 4.22 that (A) are not qualified by Company shall have performed Material Adverse Effect or other materiality qualifications will be true and complied correct in all material respects with all covenants, agreements, obligations as of the date hereof and conditions required by this Agreement to be performed or complied with by as of the Company Closing Date as if made at or prior and as of the Closing Date (except to the Closing.
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (dB) There shall not be threatened, instituted or pending any Proceeding are qualified by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Company Material Adverse Effect on Parent’s ability to exercise control over or manage the other materiality qualifications will be true and correct in all respects (without disregarding such Company after the Closing or (c) could have a Material Adverse Effect on the Company.
(eor other materiality qualifications) On as of the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation Date as if made at and as of the Merger.
Closing Date (f) The Company shall have delivered except to Parent a certificatethe extent that any such representation and warranty expressly speaks as of an earlier date, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment in which case such representation and warranty will be true and correct in all respects as of the conditions specified in Sections 7.02(a), (b) and (csuch earlier date).
(giii) The Company shall have delivered to Parent representations and Merger Sub a certificatewarranties set forth in the first sentence of Section 4.05(a), dated the first sentence of Section 4.05(b) and the first sentence of Section 4.05(c) will be true and correct in all respects as of the date hereof and as of the Closing Date, executed by a duly authorized Member, certifying as to Date (i) its Organizational Documents, (ii) resolutions with respect except to the Merger adopted by its Members attached theretoextent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and (iii) resolutions with respect to the authorization warranty will be true and correct as of the Notesuch earlier date), and (iii) incumbency and signatures of the persons who have executed this Agreement and except for any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained inaccuracies that are necessary, de minimis in the opinion of Parent counsel, in connection with (a) the execution nature and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parentamount.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub under this Agreement are to effect the Merger is subject to the satisfaction, satisfaction or waiver at or before prior to the Closing, of each Effective Time of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall in this Agreement must be true and correct in all respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), both when made and on and as of the Closing Date Effective Time with the same force and effect as though such representations and warranties had been made on as of the Effective Time, except to the extent such representations and warranties expressly refer to a specific earlier date, in which case such representations and warranties must be true and correct in all respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect) as of such dateearlier date (in either case, (i) except for such failures which, individually or in the aggregate, do not have, and each of the representations would not reasonably be expected to cause, a Company Material Adverse Effect and warranties of the Company that are not so qualified shall be true in all material respects.(ii) taking into account any changes permitted by this Agreement);
(cb) The Company shall must have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.Effective Time;
(c) Each Company Option shall have been amended, and the Company shall have received the written consents and agreements from the holders thereof, as contemplated by Section 3.2;
(d) There shall not be threatenedThe conversion, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation full and complete payment, of the Merger, (b) could have a Material Adverse Effect on Parent’s ability all amounts due and payable pursuant to exercise control over or manage the Company after the Closing or (c) could Notes shall have a Material Adverse Effect on the Company.occurred as contemplated by Section 3.3;
(e) On the Closing Date, there Each Company Warrant shall be no effective Order issued purchased by a court of competent jurisdiction restraining the Parent or prohibiting the consummation of the Merger.otherwise terminated in accordance with its terms as contemplated by Section 3.4;
(f) Parent must have received a certificate dated the Closing Date and signed by the President or any Vice President of Company in his capacity as such to the effect that each condition specified in Sections 8.2(a), (b), (d), (e), (c), (i) and (j) has been satisfied in all respects;
(g) Company must have delivered to Parent copies of all resolutions of Company’s board of directors authorizing the transactions contemplated by this Agreement, certified by Company’s Secretary or Assistant Secretary as being true, complete, correct and in full force and effect;
(h) The dissenting shares shall comprise not more than 10% of the issued and outstanding Company Common Stock; and
(i) Company shall have terminated each of the consulting agreements between the Company (or its Affiliates) with B▇▇▇ ▇. ▇▇▇▇▇▇ and J▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and
(j) The Company shall have delivered caused, at no out-of-pocket cost or expense to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying Company (other than the fulfillment payment of the conditions specified in Sections 7.02(aapplicable filing fees), (b) all the Nonpermitted Liens to be released and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect terminated to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization reasonable satisfaction of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following further conditions:
(a) During each of the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of Camworks and the Company Shareholders contained herein that are qualified as to materiality in this Agreement shall be true in all respects on and correct as of the Closing Date with the same force and effect Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date), and Parent shall have received a certificate of an officer of Camworks and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.Shareholders to such effect;
(cb) The Company Camworks and the Shareholders shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company at it on or prior to the Closing.
(d) There Effective Time, and Parent shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward have received a certificate of an Order that (a) restrains or prohibits the consummation officer of Camworks and each of the Merger, (b) could have a Material Adverse Effect on Parent’s ability Shareholders to exercise control over or manage the Company after the Closing or that effect;
(c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company Parent shall have delivered received the pooling letter agreements referred to Parent a certificatein Section 2.8(b), dated the Closing Date, executed by a duly authorized Member certifying the fulfillment from each of the conditions specified in Sections 7.02(a)Shareholders;
(d) Parent shall have received written confirmation from KPMG LLP, dated the Closing Date (bif different from the execution date) and addressed to Parent, of the letter referred to in Section 4.8;
(c).e) The Registration and Rights Agreement and the Escrow Agreement each shall have been executed and delivered by each of the Shareholders and the Shareholder Representative, and in the case of the Escrow Agreement, the Escrow Agent, and shall be in full force and effect;
(f) The Shareholders shall have executed employment agreements substantially in the form of Exhibits F-1, F-2 and F-3, respectively, each including a non-competition agreement substantially in the form of Exhibit F-4;
(g) The Company Board of Directors of Camworks shall have approved this transaction by unanimous written consent and Camworks shall have delivered a copy thereof;
(h) Camworks shall have delivered a copy of the unanimous written consent referred to in Section 7.1(a);
(i) all third party consents and waivers required to be obtained in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby shall have been obtained;
(j) parent shall have received resignation letters from each of the members of the board of directors of Camworks, which resignations shall be effective as of the effective time of the Merger;
(k) no person shall have exercised or purported to have exercised dissenter's rights under the MBCA and no person other than the Shareholders shall have claimed an interest in the equity or assets of Camworks;
(l) [Reserved]
(m) amounts outstanding under the Camworks' line of credit shall not exceed $5,000;
(n) there shall not have occurred any events or circumstances since the date of this Agreement that would have a Camworks Material Adverse Effect;
(o) Parent and Merger Sub a certificateshall have received the lock-up agreements referred to in Section 2.10(b), dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions with respect to the Merger adopted by its Members attached thereto, from each of ▇▇. ▇▇▇▇▇▇▇ and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement▇▇.
(h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company BBT contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date (except for the representations and warranties made as of a specific date which shall be true in all material respects as of such date) with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company BBT that are not so qualified shall be true in all material respects.
(cb) The Company BBT shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company BBT at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding suit, action, investigation, inquiry or other proceeding by or before any court or Governmental Authority governmental or other regulatory or administrative agency or commission requesting or looking toward an Order order, judgment or decree that (a) restrains or prohibits the consummation of the Mergertransactions contemplated hereby, (b) could reasonably be expected to have a Material Adverse Effect material adverse effect on Parent’s ability to exercise control over or manage the Company BBT after the Closing or (c) could reasonably be expected to have a Material Adverse Effect material adverse effect on the CompanyBusiness or BBT.
(ed) On the Closing Date, there shall be no effective Order injunction, writ, preliminary restraining order or other order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Mergertransactions contemplated hereby.
(fe) The Company BBT shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment Secretary of the conditions specified in Sections 7.02(a), (b) and (c).
(g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized MemberBBT, certifying as to (ia) its Organizational DocumentsBBT’s certificate of incorporation, (iib) BBT’s by-laws, (c) resolutions with respect to the Merger transactions contemplated by this Agreement adopted by its Members BBT’s board of directors and shareholders and attached theretoto such certificate, and (iii) resolutions with respect to the authorization of the Note, and (iiid) incumbency and signatures of the persons who have executed this Agreement Agreement, the Related Agreements and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this AgreementAgreement or any of the Related Agreements on behalf of BBT.
(f) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into an employment agreement with the Surviving Corporation (collectively, the “EMPLOYMENT AGREEMENTS”), substantially in the form of EXHIBIT B.
(g) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into a lock-up agreement with Parent (collectively, the “LOCK-UP AGREEMENTS”), substantially in the form of EXHIBIT C.
(h) All documents to be delivered BBT shall have furnished Parent with copies of the Ownership and Nondisclosure Agreements signed by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Subeach employee, officer, consultant or contractor of BBT identified on SCHEDULE 4.16(G).
(i) All Consents of all Third Parties and Governmental Authorities Parent shall have been obtained that are necessary, in received stock certificates representing the opinion of Parent counsel, in connection with Shares.
(aj) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents No material adverse change affecting BBT shall have been delivered to Parentoccurred.
Appears in 1 contract
Sources: Merger Agreement (Zanett Inc)
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
(a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business.
(b) The representations and warranties of the Company Southern contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company Southern that are not so qualified shall be true in all material respects.
(cb) The Company Southern shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by the Company Southern at or prior to the Closing.
(dc) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company Southern after the Closing or (c) could have a Material Adverse Effect on the CompanySouthern.
(ed) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(fe) The Company Southern shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member officer of Southern certifying the fulfillment of the conditions specified in Sections 7.02(a8.2(a), (b) and (c).
(gf) The Company Southern shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Memberthe Secretary of Southern, certifying as to (i) its Organizational Southern’s Governing Documents, (ii) resolutions with respect to the Merger adopted by its Members Southern’s board of directors and shareholders attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.
(hg) All documents to be delivered by the Company Southern to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger SubParent.
(ih) All Consents of all Third Parties and Governmental Authorities Bodies shall have been obtained that are necessary, in the opinion of Parent counselCounsel, in connection with (a) the execution and delivery by the Company Southern of this Agreement or (b) the consummation by the Company Southern of the Merger, Merger and copies of all such Consents shall have been delivered to Parent.
(i) Parent shall receive possession of the Certificates.
(j) Southern shall have executed and delivered to Parent a Certificate of Conversion Ratio in the form attached as Exhibit B hereto.
(k) Southern shall have delivered to Parent the financial statements set forth in Section 4.6, audited by an independent certified public accounting firm reasonably acceptable to Parent, the results of which audits shall be satisfactory to Parent.
(l) Parent shall have completed a business and legal due diligence investigation of Southern, the results of which shall be satisfactory to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the Merger are subject to the satisfaction, at or before the Closing, of each satisfaction of the following further conditions, any of which may be waived, in writing, exclusively by Parent:
(a) During The representations and warranties of the period from Company and the Company Subsidiary set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification, shall be true and correct at and as of the Mandatory Approvals Receipt Date as if made at and as of such date (except for representations and warranties which address matters only as of this Agreement a specified date, which representations and warranties shall be true and correct with respect to the Closing Datespecified date), there shall not except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, reasonably be expected to have occurred a Material Adverse Effect on the Company or its businessthe Company Subsidiary. Parent and Merger Sub shall have received a certificate dated as of the Mandatory Approvals Receipt Date signed by the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effect.
(b) The representations and warranties of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and or complied in all material respects with all covenants, agreements, obligations agreements and conditions covenants required by this Agreement to be performed or complied with by the Company it at or prior to the ClosingEffective Time. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effect.
(c) Parent shall have received opinions of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP and Meitar Liquornik Geva & Leshem ▇▇▇▇▇▇▇▇▇, counsel to the Company, dated the Effective Date in substantially the forms attached hereto as Exhibits E-1 and E-2, respectively.
(d) There shall not be threatened, instituted The Company or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after Subsidiary, as the Closing case may be, shall have received all consents, authorizations or (c) could approvals from the governmental agencies referred to in Section 4.03 and Section 6.07, in each case in form and substance reasonably satisfactory to Parent, and no such consent, authorization or approval shall have a Material Adverse Effect on the Companybeen revoked.
(e) On The Stockholder Consents shall have been executed and delivered by the Closing Date, there Stockholders listed on Annex A hereto and shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Mergerin full force and effect.
(f) Each of the Non-Competition and Non-Solicitation Agreements executed and delivered to Parent by the individuals listed on Annexes B-1 and B-2 on the date of this Agreement hereto shall be in full force and effect, and without any amendment thereto, immediately prior to the Effective Time.
(g) (i) At least 17 of the total number of employees of the Company Subsidiary as of the date hereof shall continue to be employed by the Company Subsidiary in their respective positions as of the date hereof, including without limitation, (A) each of the individuals listed on Annex B-2 hereto that are employed by the Company Subsidiary and (B) ▇▇▇ ▇▇▇▇, and (ii) the individuals listed on Annex B-1 hereto employed by the Company shall continue to be employed by the Company in their respective positions as of the date hereof, and Parent shall have received a certificate signed by an officer of the Company to the foregoing effect.
(h) Parent shall have received certified certificates of incorporation and bylaws, and good standing certificates in respect of the Company and the Company Subsidiary and certified board resolutions in respect of the transactions contemplated hereby, all in form and substance reasonably satisfactory to Parent.
(i) The amendments to the Company’s certificate of incorporation as set forth in Schedule 4.01(b) shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect.
(j) The Company shall have delivered a certification pursuant to Parent a certificateTreasury Regulations Sections 1.897-2(h) and 1.1445-2(c), signed by the Company and dated not more than 30 days prior to the Closing Date, executed by a duly authorized Member certifying Effective Time to the fulfillment effect that the Company is not nor has it been within 5 years of the conditions specified date of the certification a “United States real property holding corporation” as defined in Sections 7.02(a), (b) and (c)Section 897 of the Code.
(gk) No Material Adverse Effect on the Company or the Company Subsidiary shall have occurred prior to the Mandatory Approvals Receipt Date and be continuing.
(l) The Company shall have delivered taken all actions required by Section 6.13(a) and Section 6.13(b).
(m) Parent shall have received a certificate signed by the Chief Financial Officer of the Company setting forth the Estimated Company Cash Amount pursuant to Section 6.08.
(n) The Company shall have paid all Transaction Expenses. Parent and Merger Sub shall have received a certificate, dated certificate signed by the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) resolutions Chief Financial Officer of the Company setting forth the Transaction Expenses incurred with respect to the Merger adopted by its Members attached thereto, and (iii) resolutions with respect to the authorization of the Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documentsthe transactions contemplated hereby. The Company and Company’s legal counsel, certificates auditors, investment bankers and agreements financial advisors shall have agreed to the amounts set forth in such certificate. Any additional Transaction Expenses exceeding the amounts set forth in such certificate shall be executed and delivered at the Closing considered a Loss pursuant to this AgreementSection 10.02 and shall be paid out of the Escrow Fund in accordance with the provisions set forth in Section 10.02; provided that such Transaction Expenses shall be recoverable from the first dollar and shall not be subject to the Basket Amount.
(ho) All documents The Company shall have obtained the written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated to be delivered the Merger pursuant to Section 18.5 of the Software License and Development Agreement entered into as of June 30, 2003 by and between the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered to Parent.
Appears in 1 contract
Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub under this Agreement to effect the Merger are subject to the satisfaction, satisfaction at or before prior to the Closing, of each Effective Time of the following conditions:
(a) During the period from representations and warranties contained in Article III shall be true and correct as of the Closing as if made at and as of the Closing (except for representations and warranties that expressly relate to a specific date of this Agreement prior to the Closing Datewhich need only be true and correct as of such earlier date); provided, there however, that this condition shall not have occurred be deemed satisfied unless any and all inaccuracies in the representations and warranties contained in Article III, in the aggregate, result in a Material Adverse Effect on the Company or its business.
(b) The representations and warranties ignoring for the purposes of the Company contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date with the same force and effect as though made on and as of such date, and each of the representations and warranties of the Company that are not so qualified shall be true in all material respects.
(c) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required this Section any qualifications by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(d) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Authority requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage otherwise by material adversity and any materiality qualification or words of similar import contained in such representations or warranties), and, at the Company after Closing, the Closing or (c) could have a Material Adverse Effect on the Company.
(e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger.
(f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed certificate signed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), its chief executive officer and chief financial officer to that effect;
(b) each of the covenants and (c).
(g) The obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and Merger Sub chief financial officer to that effect;
(c) no Material Adverse Effect on the Company shall have occurred since the date of this Agreement, and, at the Closing, the Company shall have delivered to Parent a certificatecertificate signed by its chief executive officer and chief financial officer to that effect;
(d) the Escrow Agreement substantially in the form of Exhibit C hereto, dated shall have been duly executed and delivered by the Closing DateHolder Representative and the Escrow Agent;
(e) the holders of not more than 5% of the outstanding shares of Common Stock and Preferred Stock (calculated, executed by a duly authorized Memberwith respect to the Preferred Stock, certifying as on an as-converted basis) in the aggregate shall have exercised their appraisal rights in accordance with Section 262 of the DGCL;
(f) the Company shall have delivered to Parent (i) its Organizational Documentsthe statement of Estimated Net Working Capital, pursuant to Section 2.12(b), (ii) resolutions with respect the Net Debt Notice, pursuant to the Merger adopted by its Members attached thereto, Section 2.12(c) and (iii) resolutions with respect to the authorization of the NoteCompany Transaction Expense Notice, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement.Section 2.12(d);
(g) the Company shall have delivered to Parent the payoff letters and UCC-3 termination statements pursuant to Section 2.12(e); and
(h) All documents to be delivered by Parent shall have received letters of resignation from the Company to Parent and Merger Sub at directors of the Closing shall be reasonably satisfactory Company, in form and substance to Parent and Merger Sub.
(i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or (b) the consummation by the Company of the Merger, and copies of all such Consents shall have been delivered reasonably acceptable to Parent.
Appears in 1 contract